Witness to Abuse

Human Rights Abuses under the Material Witness Law since September 11

Summary

After I
got in the cell I went kind of crazy. I was calling the guards to find out
exactly what was my crime. Where's my lawyer if I have a lawyer. Because nobody
told us anything. What's going to happen or what's going on. Nobody answered me
so I kept banging on the door. Of course I start crying. The guard came, the
supervisor or something. He starts yelling at me. I yelled back and I said [I]
need to know why I am here. I need to talk to somebody. He said we don't know,
once we know, we will let you know. I felt he didn't know why we were being
held. I had nothing to do but sit and cry. That's technically all we did. Sit
and pray and cry. Sit and pray and cry.

-Tarek Albasti, a U.S.
citizen detained in October 2001 by the U.S. Department of Justice as a
material witness and held in solitary confinement in a federal prison in Chicago. The Department
of Justice later apologized to him.

Americans
are a free people, who know that freedom is the right of every person and the
future of every nation.

-President George W. Bush, State of the Union
Address, January 2003

Since the attacks of September 11, 2001, at
least seventy men living in the United States-all Muslim but one-have been
thrust into a Kafkaesque world of indefinite detention without charges, secret
evidence, and baseless accusations of terrorist links. They have found
themselves not at GuantnamoBay or Abu Ghraib but in America's own federal prison system, victims of
the misuse of the federal material witness law in the U.S.
government's fight against terrorism.

Congress enacted the current material witness
law in 1984 to enable the government, in narrow circumstances, to secure the
testimony of witnesses who might otherwise flee to avoid testifying in a
criminal proceeding. If a court agrees that an individual has information
"material" to a criminal proceeding and will likely flee if subpoenaed, the
witness can be locked up-but, in theory, only for as long as is necessary to
have him testify or be deposed.

Since September 11, however, the U.S.
Department of Justice has deliberately used the law for a very different
purpose: to secure the indefinite incarceration of those it has wanted to
investigate as possible terrorist suspects. It has used the law to cast men
into prison without any showing of probable cause that they had committed
crimes. The Justice Department has also refused to respect fundamental
constitutional and human rights of detainees, including the rights to be
notified of charges, to have prompt access to an attorney, to view exculpatory
evidence, and to know and be able to challenge the basis for arrest and
detention.

The misuse of the material witness law has
been harmful for those who have been wrongly held and damaging to the law
itself. Innocent people have become the hapless victims of the government's
zeal, because neither the Justice Department nor the courts have honored the
letter and spirit of the material witness rules that protect everyone's right
to freedom. In evading the requirement of probable cause of criminal conduct,
the government bypassed checks on the reasonableness of its suspicion. As a
result, men were imprisoned who had little or no information about, much less
links, to terrorism. The Justice Department claimed each of the post-September
11 material witnesses had information relevant to grand jury terrorism
investigations or to the trials of defendants alleged to support terrorist
organizations. Yet at least thirty witnesses we know about were never brought
before a grand jury or court to testify. Although our research suggests federal
authorities suspected most if not all of the witnesses of terrorist-related
conduct, only seven were ever arrested on terrorism-related charges.

The material witness law has been twisted
beyond recognition. Procedures designed for the temporary detention of
witnesses who might otherwise skip town have been misused to hold men who were
in fact criminal suspects. Holding as "witnesses" people who are in fact
suspects sets a disturbing precedent for future use of this extraordinary
government power to deprive citizens and others of their liberty. The rule of
law itself suffers when a law is used as a pretext to sidestep longstanding
checks on the arbitrary exercise of executive power.

The Justice Department has tried to hide its
use of the material witness law, refusing to respond to congressional inquiries
and keeping courtroom doors closed, records sealed, and material witness cases
off court dockets. Nevertheless, through a year of intensive research, Human
Rights Watch and the American Civil Liberties Union (HRW/ACLU) have been able
to identify seventy men whom the department has arrested as material witnesses
in connection with its anti-terrorism investigations. We do not know how many
others there have been. U.S.
citizenship was no bar to the misuse of the material witness law: at least
one-quarter of the known material witnesses are U.S. citizens.

Many of the seventy material witnesses we
have identified suffered imprisonment because federal investigators and
attorneys relied on false, flimsy, or irrelevant information and jumped to the
wrong conclusions. Their judgment about evidence also appears to have been
colored by ignorance about and perhaps even prejudice. Not only were almost all
the witnesses Muslim, sixty-four of the seventy were of Middle Eastern or South
Asian descent.

The material witness law does not specify how
long a witness may be incarcerated before being presented in a criminal
proceeding or released. The Department of Justice took full advantage of this
gap in the law. One-third of the seventy post-September 11 material witnesses
we identified were incarcerated for at least two months. Some endured
imprisonment for more than six months, and one witness spent more than a year
in prison. In almost every case, there is evidence that the Justice Department
used the material witness statute to buy itself time to go on a "fishing
expedition" for evidence showing the witnesses were in some way involved with
terrorism. In most cases no such evidence existed. The investigations, however,
did sometimes turn up evidence of non-terrorism related criminal misconduct or
immigration violations, which became the basis for subsequent arrests and
continued detentions. When there was no evidence of any wrongdoing, the Justice
Department simply held witnesses until it concluded that it had no further use
for them, or until a judge finally ordered their release.

Consistent with the Justice Department's
suspicions that the witnesses were dangerous men linked to terrorists, the
witnesses were often arrested at gunpoint in front of families and neighbors
and transported to jail in handcuffs. They typically were held around-the-clock
in solitary confinement and subjected to the harsh and degrading high-security
conditions typically reserved for prisoners accused or convicted of the most
dangerous crimes. They were taken to court in shackles and chains. In at least
one case, a material witness was made to testify in shackles.

In some cases, the harsh treatment of
material witnesses included verbal and even physical abuse by prison staff. The
Department of Justice's Inspector General issued a report detailing the abuse
of material witnesses as well as other detainees in federal detention
facilities.

In the United States, court hearings on
arrests and detentions, including hearings on material witness cases, are usually
public under the long-standing principle that secret proceedings are odious in
a democratic society. Yet at the Justice Department's insistence, courts have
conducted virtually all the post-September 11 material witness proceedings
behind closed doors and have sealed virtually all documents connected to the
cases, including arrest warrants, affidavits, transcripts, legal briefs, and
court rulings. Almost allthecases have been kept off the public
court dockets altogether. The government's quest for secrecy has extended to
obtaining gag orders for witnesses' attorneys and family members, so they could
not reveal anything witnesses told them or what happened in the courtroom,
while strictly limiting witnesses' communication with the outside world, so they
could not contact the media.

The Department of Justice has contended that
grand jury rules require such secrecy. However, prior to September 11, the
Justice Department did not make such a contention-detention hearings for
federal material witnesses in grand jury proceedings were typically public. The
Justice Department also has insisted that national security can only be
protected by keeping from the public everything about the material witness
arrests and detentions. But this sweeping and unprecedented argument cannot be
squared with longstanding principles of justice and democratic accountability.

The government's deprivation of witnesses'
rights has extended to limits on access to attorneys and information. While the
government must inform arrested criminal suspects that they have the right to
an attorney, to have an attorney provided, and to remain silent (so-called Miranda warnings), the government has
taken the position that material witnesses are not guaranteed this protection
by law. Not one witness whom HRW/ACLU interviewed was provided with such
information upon arrest. Most reported to us that they were interrogated during
their detention without a lawyer present. They also reported that officials often
failed to honor their requests for an attorney or to stop interrogations when they
did ask for counsel.

Criminal suspects have the right to be
informed of the basis for their arrest. Yet the Department of Justice has
frequently taken the position that it does not have to provide the material witnesses
any information at all. In some cases we have researched, it went so far as to
deny the witnesses access to its application for the arrest warrants. Indeed, the
government usually refused to give the witnesses or their attorneys a copy of
the affidavit supporting the arrest warrants. When it permitted attorneys to
review the affidavits, it often subjected them to various constraints; e.g.,
they could read the affidavits only in front of government attorneys and were
not allowed to take notes or make copies. Some attorneys were even restricted
from revealing the contents of the affidavits to their clients, which made
contesting the basis for the arrest and detention extremely difficult. Denying
witnesses access to information and keeping the proceedings buried in secrecy
meant that Justice Department mistakes were not rectified as quickly as they
might have been.

Many of the seventy material witnesses whose
cases are addressed in this report were arrested and incarcerated on the basis
of evidence that would never have sufficed for criminal arrest and pre-trial
detention. The evidence often consisted of little more than the fact that the
person was a Muslim of Middle Eastern or South Asian descent, in combination
with having worked in the same place or attended the same mosque as a September
11 hijacker, gone to college parties with an accused terrorism suspect,
possessed a copy of Time magazine with Osama bin Laden on the cover, or
had the same common last name as a September 11 hijacker. In some cases, the
government's argument for flight risk even acknowledged that the witnesses were
in fact criminal suspects-prosecutors contended that witnesses must be
incarcerated because of the magnitude of the crime to which they were
connected, or because they presented a "danger to the community."

Faced with prosecutors invoking grand jury
powers and national security concerns, federal courts have done little to
protect the material witnesses. We are not aware of a single case in which a
court rejected a request for a material witness arrest warrant in a
terrorism-related case since September 11. Indeed, our research suggests the
courts rarely even probed the government's grounds for believing a witness
would not comply with a subpoena to testify. The courts approved arrest
warrants even for witnesses with strong family ties in the U.S. and who
had met with the Federal Bureau of Investigation (FBI) voluntarily, consented
to searches and polygraphs-even gone to the FBI with a tip. With little
scrutiny of the government's claims, the courts also routinely ordered the incarceration
of witnesses as flight risks and rarely asked whether alternatives to imprisonment
might suffice.

Forty-two of the seventy material witnesses
identified during the research for this report were ultimately released without
any charges filed against them. Seven were charged with providing material
support to terrorist organizations; as of May 2005, four had been convicted,
and the other three were awaiting trial. Another twenty witnesses were charged
with non-terrorist-related crimes, such as bank or credit card fraud or making
false statements to the FBI. Twenty-four were deported. Two of the seventy were
designated "enemy combatants"; they were removed from the criminal justice
system, turned over to the Department of Defense, and, as of this writing,
remain held without charges in solitary confinement in military brigs.

The U.S. government apologized to at
least thirteen material witnesses for wrongfully detaining them. It should
apologize to many more. But apologies are poor compensation for loss of
liberty, as well as the emotional toll that incarceration has had on the
detainees and their families. Witnesses were traumatized by being held in
solitary confinement with no understanding of why they were there; they were
allowed limited, if any, contact with their wives and children; and they often were
subjected to taunts and sometimes even physical abuse by their guards. Their
families were traumatized as well-fearful for the fate of their husbands, sons,
and fathers, and hounded by the media. The witnesses' highly public arrests and
the government's suggestions that they were linked to terrorism damaged their
businesses and community reputations. The damage has continued long after their
release because the government rarely issued statements publicly exonerating
them.

The needless incarceration of these men also
has aggravated distrust towards the government in Muslim communities in the
United States that have been repeatedly targeted by sweeping, ill-advised, and
at times illegal post-September 11 investigation, arrest, and detention
policies. Beyond the Muslim community, the misuse of the material witness law
threatens U.S.
citizens and non-citizens alike, because it reflects a lowering of the
standards designed to protect everyone from arbitrary and unreasonable arrest
and detention.

To date, no Department of Justice official
has been held accountable for abusing the limited authority that Congress
conferred on them with the material witness law. Indeed, the Justice Department
has refused to answer Congress's request for further information on its use of
the law. Some Department of Justice officials believe that detaining possible terrorist
suspects as material witnesses is a creative and clever strategy. But their
self-satisfaction reflects a disconcerting willingness to abandon adherence to
the rule of law and to extend the boundaries of executive power past
constitutional limits.

History has shown that in times of perceived
national peril, governments often succumb to the temptation to abuse their
powers of arrest and incarceration. Human Rights Watch and the American Civil
Liberties Union recognize the critical importance of protecting lives from
terrorist attacks and bringing to justice those responsible for them. But the
fight against terrorism must include a vigorous affirmation of fundamental rights.
We hope this report will encourage U.S.
officials, legislators, and the public to insist that U.S. domestic counterterrorism efforts be
conducted without running roughshod over the principles of liberty and due
process that the United
States has long recognized as the foundation
of its strength.

Recommendations

The recommendations below are intended to
address the violations of international human rights law and U.S. constitutional law identified
in this report. They are directed primarily to the Department of Justice,
including the Federal Bureau of Investigation (FBI). We also urge Congress to
exercise its legislative and oversight authority to ensure that the necessary
changes in current policies and practices are made. If detention of witnesses
is permissible at all, the U.S. government must ensure that investigations and
arrests of persons suspected of having information material to a terrorism
investigation are conducted with regard for the rights of all persons in the
United States to be free of arbitrary, pretextual, or unnecessarily prolonged
detention; mistreatment in confinement, and discrimination.

To the Justice Department

To
the FBI and U.S.
Attorneys

The
Justice Department should use the material witness law only for the
purpose of obtaining testimony and not for the purpose of detaining
criminal suspects without charges.

National
origin, race, religion, or gender should not be the basis for suspicion of
unlawful conduct, possession of material information, or flight risk.

Federal
law enforcement officials should strictly limit the detention of a
material witness to the shortest time necessary to secure his testimony by
appearance before a court or grand jury or by deposition. The government's
interest in further investigation of the witness should not delay the
witness's testimony and release.

The
Department of Justice should seek the cooperation of potential witnesses
before arresting them as material witnesses. The Justice Department should
apply for a material witness warrant only when the witness has explicitly
refused to testify or done something affirmative to show that he would not
comply with a subpoena.

U.S.
Attorneys should provide material witnesses and their lawyers with full
access to the application, affidavits, and any other materials necessary
for the witness and lawyer to adequately respond to the government's
contentions.

On
arresting material witnesses, federal law enforcement officers should
promptly inform them, in a language they can understand, of the basis for
their arrest, provide them with a copy of the warrant, and inform them
that they have a right to counsel. Before interrogating material
witnesses, federal officers must again inform them of their rights,
including the right to counsel.

Court
hearings and records in material witness cases should be presumptively
open. The Justice Department shouldnot seek to close hearings or seal records except to the limited
extent that closure is the least restrictive means to further some other
compelling government interest.

To
the Department of Justice Office of Professional Responsibility

Ensure
that the FBI and U.S. Attorneys are not using the material witness law to
circumvent probable cause and other requirements governing the arrest of
criminal suspects.

To
the Inspector General

Initiate
a review of the Department of Justice's use of the material witness law in
connection with terrorism investigations since September 11.

To Congress

To
the Judiciary Committee

Request
that the Justice Department update Congress on the status of all material
witnesses arrested in connection with the September 11 terrorism
investigations and provide their names, length of and basis for their
detention and whether they testified.

Urge
the Department of Justice Inspector General to investigate the misuse of
the material witness law since September 11 to detain criminal suspects
without charges.

Hold
public hearings on the Department of Justice's misuse of the material
witness law to hold criminal suspects.

To
the House and Senate

Amend
the material witness law to incorporate measures to prevent its misuse and
to increase protections of the right to liberty, including:

strengthening
the burden of proof that the government must meet to arrest and detain
material witnesses;

establishing
a specific time limit on the government's ability to hold a material
witness;

requiring
the government to inform witnesses of the basis of their detention upon
their arrest and to provide them with a copy of the warrant and relevant
evidence to support the request for a warrant;

requiring
that material witnesses be detained in the least restrictive conditions
possible.

To the Judiciary

Ensure
that the Department of Justice is not using the material witness law as a
pretext to hold criminal suspects.

Refuse
government requests to close hearings and seal court documents regarding
material witness arrests or detentions. Proceedings should be public
except where partial or full closure is the least restrictive means to
furthering some compelling government interest.

I.The
Material Witness Law: Overview and Pre-September 11 Use

International human rights law and U.S. domestic law affirm the right
to liberty and the necessity of effective safeguards against arbitrary or
unreasonable arrest and detention.[1]U.S. criminal law seeks to prevent
unreasonable arrests through various means, including the requirement that no
one may be arrested except when there is probable cause to believe that person
has committed a crime.[2] The
requirement of probable cause protects the public "from rash and unreasonable
interferences with privacy and from unfounded charges of crime" while giving
"fair leeway for enforcing the law in the community's protection."[3]

Exceptions to this fundamental rule of probable cause of
criminal conduct before an arrest are few and narrow.[4]
One of those exceptions is the federal material witness law, which permits the
government to hold temporarily a person whose testimony is needed for a
criminal proceeding and who is likely to flee instead of testifying.[5] This
exception reflects a compromise between an individual's right to liberty and
the administration of a fair and workable criminal justice system.

The ability to arrest a witness under federal law dates back
to the eighteenth century.[6] It is
based on the duty of citizens to disclose relevant knowledge in criminal
proceedings. However, the authority to arrest a material witness is the most
onerous method Congress has set forth to secure the appearance of a witness at
a criminal proceeding. Most commonly the government will obtain a subpoena[7] to secure
the testimony; if a witness fails to comply, the court may jail or fine a
witness for being in contempt of court[8]
or issue an "attachment" to arrest the witness.[9]
In addition, the court may issue a writ or summons directing a witness to
appear under threat of jail for failing to appear.[10]
The Supreme Court has acknowledged the importance of the authority to arrest a
witness to ensure his appearance in those exceptional circumstances when other
mechanisms, such as contempt penalties, are "too slight to deter the witness
from absenting himself."[11]

While Congress has long authorized the arrest of witnesses,
it has consistently put restrictions on jailing witnesses, historically
permitting detention only if a witness did not provide assurances to a judge
that he would testify.[12] To
further limit the detention of witnesses, Congress added the requirement that
witnesses should be deposed in lieu of detention whenever possible.[13]

Overview of the Material Witness Law

Under the material witness law, the federal government is
authorized to arrest a witness to secure his testimony in a criminal
proceeding.[14] To obtain
a witness arrest warrant, the Department of Justice must file an application
with a federal district court establishing that (1) an individual has
information that is material to a criminal proceeding, and (2) it is
impracticable for the government to secure the witness's presence at a criminal
proceeding by a subpoena. In some courts, the government may establish that a
material witness has relevant information to a grand jury proceeding simply by
submitting a sworn statement from a government official.[15]
If the government establishes grounds to believe that the witness has relevant
information and will flee if served
with a subpoena, the court may authorize the warrant.

The material witness statute directs that upon arrest, the witness
is to be treated in accordance with the criminal statute that is used to
determine whether criminal defendants are released or held before trial. As
soon as possible after arresting a material witness, the government must bring
the witness to a judicial officer for a detention hearing. The principal issue
for the court to determine at the initial hearing is whether the material
witness should be released or incarcerated.[16]
At this hearing, the court can hear any factual or legal challenges to the arrest
as well as motions to depose a witness.[17]

The law indicates a preference for ensuring the appearance
of a witness by using alternatives to detention: "The judicial officer shall
order the pretrial release of the person on personal recognizance unless the
judicial officer determines that such release will not reasonably assure the
appearance of the person as required."[18]
There is also a judicial preference in favor of release: "Only in rare
circumstances should release be denied."[19]

The statute provides that the court can (1) release the
witness on his or her own recognizance, (2) release the witness on bond or
other conditions, (3) temporarily detain the witness for immigration or
probation purposes, or (4) order detention. Detention can be ordered only if
the imposition of release conditions will not reasonably assure the witness's
appearance at the proceeding for which his testimony is sought.[20] To
determine whether there are conditions of release that will reasonably assure
appearance, the court must hold a detention hearing immediately upon the
person's initial appearance unless the witness or the government seeks
additional time. The witness has the right to be represented by counsel, to
have counsel appointed if he is financially unable to obtain representation,
and to present and cross-examine witnesses.[21]

As noted above, in determining whether to release or detain
a witness, the court relies on the same statute that governs whether a criminal
suspect is detained prior to trial. Generally, this will result in the court
weighing the witness's character, employment, family and community ties to
assess the extent to which there is a risk of flight and what, if any,
conditions of release will reasonably assure that the person will appear.[22]

If the court orders a material witness detained, the court
must provide a written statement explaining the reasons for detention.[23] The court
must direct that the witness be held in a detention center separate from
individuals awaiting or serving sentences, to the extent that is practicable,
and that the witness be afforded a reasonable opportunity for private
consultation with counsel.[24] Also, if
ordered detained or unable to satisfy any release conditions, a witness can
request to be deposed in lieu of detention by filing a written motion and
notifying the government.[25] If the
witness makes a motion to be deposed, the government must show that the
witness's testimony cannot be adequately secured by a deposition.[26]

While Congress emphasized a preference for deposing and then
releasing material witnesses, it set no limit on the length of time a witness
can be kept incarcerated. Due process requires the duration of the detention to
be rationally related to its purpose.[27]

Arrest of Material Witnesses before September 11

Before September 11, the vast majority of persons arrested
as material witnesses were non-U.S. citizens arrested by the former Immigration
and Naturalization Service (INS).[28] In 2000,
for example, 94 percent of the 4,168 federal material witness arrests were made
by the INS, and less than 2 percent were citizens.[29]
Most of the material witnesses arrested by the INS were immigrants who were
smuggled into the country, and the INS sought to ensure their testimony in
trials against the smugglers before the witnesses left the country.[30]

Courts generally issued material witness warrants only when
the witnesshad demonstrated through
his conduct that securing his testimony absent an arrest would be unlikely,
e.g., in cases of "a witness moving without leaving a forwarding address, a
witness not appearing when requested or subpoenaed to appear, or the inability
to serve a subpoena upon a witness."[31]
The government had to meet a high threshold of proof that a witness would flee
if he or she was subpoenaed because, as one court explained, "Police have less
authority to detain those who have witnessed a crime than to detain those
suspected of committing a crime under the Fourth Amendment."[32] Absent a
strong showing by the government, courts would quash the warrant, as, for example,
the U.S. Court of Appeals for the Ninth Circuit did in 1984 when it ruled that
a material witness warrant was not valid, even where the witness informed the
government he would not testify unless subpoenaed and agents attempted service
on the witness multiple times to no avail:

The facts do not show that [the material witness] was a
fugitive or that he would be likely to flee the jurisdiction; rather, they only
show a man somewhat obstinately insisting upon his right to refuse to appear
before a grand jury until personally served. Those facts are insufficient to
provide probable cause for believing that [the witness's] attendance could not
be secured by subpoena.[33]

II.Post-September
11 Material Witness Detention Policy

The Department of Justice has refused to reveal publicly how
many persons it has arrested as material witnesses in connection with its
post-September 11 investigation or any details about the witnesses, including
the specific reasons for their arrests or why they were considered flight
risks.[34] The
information is not readily available publicly because the Justice Department
has obtained court orders precluding the public from attending the material
witness hearings, sealing virtually all court documents, and imposing gag
orders[35] on all present
at almost all of the hearings.Even in response to Congressional
inquiries, the Justice Department has provided only vague, general information
about detained material witnesses. In May 2003, in response to a request for
information from Congress, the Justice Department stated that as of January
2003 it had detained fewer than fifty material witnesses in connection with the
September 11 investigation. It also indicated that approximately half of the
material witnesses were held for more than thirty days.[36]

Our research indicates that the government has to date
arrested at least seventy material witnesses in connection with its
post-September 11 counter-terrorism investigation. There may well be more.
Recently released statistics from the Department of Justice confirm that
between 2000 and 2002, the FBI increased the number of material witnesses it
arrested by 80 percent.[37] The DOJ
does not indicate, however, how many of the witnesses were held in connection
with the post-September 11 counter-terrorism investigation.

All of the seventy material witnesses HRW/ACLU identified in
connection with this report were men. All but one was Muslim, by birth or
conversion. All but two were of Middle Eastern, African, or South Asian
descent, or African-American. Seventeen were U.S. citizens. The rest were
nationals of Algeria, Canada, Djibouti,
Egypt, France, India,
Ivory Coast, Jordan, Lebanon,
Pakistan, Palestine,
Quatar, Saudi
Arabia, Sudan,
Syria, Yemen. (See below for a chart of
the breakdown of these nationalities as a percentage of the total identified material
witnesses.)

About one-third of the material witnesses arrested in the
post-September 11 counterterrorism investigation were living in the same towns
in Oklahoma, California, Arizona, and Florida, where the nineteen September 11
hijackers and other terrorist suspects had lived or visited. These witnesses
became suspect because they were believed to have worked, dined, or prayed at
the same mosque with the suspected terrorists. The remaining material witnesses
identified throughout this report were living throughout the country and came
under suspicion for a variety of reasons: taking flight lessons, tips from
neighbors, having news material on terrorist suspects, or even having a name
similar to a suspect.

III.Misuse of the Material
Witness Law to Hold Suspects as Witnesses

After September 11, then Attorney General John Ashcroft
insisted the Justice Department "think outside the box" to combat terrorism.
The Justice Department has adopted a "prevent first, prosecute second"strategy,
which has included efforts to detain through whatever means possible people who
might be connected to terrorist organizations.[38]
Federal agents have swept through Muslim communities to pick up suspects often
based on leads that, according to the Justice Department Inspector General's
subsequent report, "were often quite general in nature, such as a landlord
reporting suspicious activity by an Arab tenant."[39]

Lacking in most cases sufficient evidence to obtain criminal
arrest warrants, the Justice Department has used other means to secure these
detentions. Whenever possible, the Justice Department has used routine
immigration violations, such as working on a student visa, to detain Muslim men
suspected of links to or knowledge about terrorism.[40]
Through manipulation of procedure and abuse of its authority to use detention
to carry out deportations, the Justice Department has held these "special
interest" detainees until they have been "cleared" of ties to terrorism.[41]

From the beginning of the September 11 investigation, U.S. government
officials have made clear that they used the material witness law to detain
suspects in the war on terror. Then Attorney General John Ashcroft explained:
"Aggressive detention of lawbreakers and material witnesses is vital to
preventing, disrupting, or delaying new attacks."[42]
Then White House Counsel Alberto Gonzales (now Attorney General) stated that as
a matter of course the executive branch routinely considers whether to detain
al-Qaeda suspects as material
witnesses: "In any case where it appears that a U.S. citizen captured within
the United States may be an al-Qaeda operative and thus may qualify as an enemy
combatant, information on the individual is developed and numerous options are
considered by the various relevant agencies (the Department of Defense,
[Central Intelligence Agency] and [Department of Justice]), including the
potential for a criminal prosecution, detention as a material witness, and
detention as an enemy combatant."[43] Gonzales
emphasized that the choice of law used to detain a suspected al-Qaeda operative
was an exercise of presidential power of discretion and that there was "no
rigid process for making such determinations-certainly no particular mechanism
required by law."[44]

Robert Mueller, who headed the FBI during the September 11
investigation, acknowledged that material witnesses were suspects in the
counter-terrorism investigation: "In the United States, a number of suspects
were detained on federal, state, or local charges; on immigration violations;
or on material witness warrants."[45] The
Inspector General of the Department of Justice confirmed the policy of using
the material witness law to jail suspects while investigating them in the September
11 investigation.[46] According
to then Assistant Attorney General Michael Chertoff, the Justice Department has
considered material witness warrants to be "an important investigative tool in
the war on terrorism Bear in mind that you get not only testimony-you get
fingerprints, you get hair samples-so there's all kinds of evidence you can get
from a witness."[47]

In an interview with HRW/ACLU, former chief U.S. Attorney
for the Southern District of New York Mary Jo White, a key architect of the
post-September 11 material witness policy, strongly defended the use of the
material witness law to detain possible terrorist suspects. While pointing out
that the United States does not have laws permitting detention of criminal
suspects without charges, she noted that "the material witness statute gives
the [U.S.] government effectively the same power To the extent that it is a
suspect involved in terror, you hold them on a material witness warrant, and
you get the information until you find out what's going on."[48] According
to White, holding someone as a material witness has given the government the
time it needed "to get important information."[49]
She dismissed as simply not feasible the suggestion that the government could
have conducted surveillance on the suspects to ensure they did not engage in
criminal activity or abscond, while it continued to gather evidence about them.[50]

In enacting the material witness law, however, Congress did
not authorize its use to detain criminal suspects for whom probable cause is lacking.
Rather, the law allows detention only to obtain the testimony of witnesses. As
the Court of Appeals for the Second Circuit admonished in 2003: "[I]t would be
improper for the government to use [the material witness law] for other ends,
such as the detention of persons suspected of criminal activity for which
probable cause has not yet been established."[51]
Yet that is exactly what the Department of Justice has done since September 11.

Suspects Held as Witnesses

Many of the material witnesses held in connection with
counterterrorism investigations since September 11 have been the key or sole
suspect in criminal investigations. In court filings to support the arrest of
material witnesses, the FBI has submitted affidavits replete with statements
that the witness was potentially a major player or a co-conspirator in a
terrorism-related crime. In a number of these cases, the government has sought
the witness's testimony in a grand jury proceeding it initiated solely to
investigate the witness himself.

Prior to September 11, relatively few criminal defense
lawyers had experience with the material witness law, because it was so rarely
used by the FBI at all, let alone to hold criminal suspects. But those who had
material witness clients both before and after September 11 were stunned by the
transformation in the law's use in the counter-terrorism context. As one
attorney told HRW/ACLU:

I've represented a number of material witnesses before
September 11 in regular crimes. None of them were ever alleged to have done the
crimes. I've never seen the law used this way-in the Department of Homeland
game we are in now. What's changed is that before September 11 a witness is
just a witness. He's not a criminal. In what's going on the government is
treating the witness as a criminal-it's presumed now that because they have
information that they are somewhat involved.[52]

Brandon Mayfield

When the FBI took Oregon attorney and Muslim convert Brandon
Mayfield into custody as a material witness in May 2004, Mayfield was the
primary public U.S. suspect in the FBI's investigation of the March 2004 Madrid
train bombing. After more than a month of bugging the Mayfield family
residence, conducting secret searches of Mayfield's home and office, collecting
his DNA, and keeping him under surveillance,[53]
the FBI obtained a material witness warrant to arrest him.

The FBI appeared to believe that Mayfield-a U.S. citizen, a
veteran of the U.S. Army, and a father of three-was a perpetrator of the
bombing because its experts had made a "100 percent positive identification" of
Mayfield's fingerprint with a print found on a bag of detonators found near the
Madrid bombing site.[54] In
seekingsearchwarrantsfor Mayfield's
home, cars, safe deposit box, and law office, the Justice Department identified
him as a "potential target;" the lead FBI agent in the case told the court that
he expected to yield evidence of bombs and conspiracy to commit bombings
through the search.[55] At the
time the Justice Department arrested Mayfield, it had not yet convened a grand
jury investigation. It told the court it would select and convene a grand jury
the following week.

After detaining Mayfield for more than two weeks in jail and
holding him under house arrest for an additional week, the Justice Department
on May 24, 2004, moved to have him dismissed as a material witness because
Spanish authorities had apprehended an Algerian man whose print matched the Madrid print. The FBI
subsequently admitted that it had mismatched Mayfield's print, and it issued an
"apolog[y] to Mr. Mayfield and his family for the hardships that this matter
has caused."[56]

A panel of international experts, convened by the FBI, has
since rebuked the fingerprint experts for succumbing to institutional pressure
to make a false identification.[57]At the urging Congress, the
Department of Justice's Office of Inspector General and Office of Professional
Responsibility began an investigation, still not completed as of mid-June 2005,
of the conduct of the U.S. Attorneys and the FBI in the Mayfield case.

Tajammul Bhatti

On June 20, 2002, several FBI agents with guns drawn
arrested as a material witness Dr. Tajammul Bhatti, a sixty-eight-year-old
physician and a U.S.
citizen since 1970.[58] In sealed
court documents the FBI alleged that Bhatti was connected to an investigation
of "material support to terrorists." Bhatti was arrested as the only suspect in
a grand jury criminal proceeding that had not yet been instituted at the time
of his arrest.[59]

Bhatti became the focus of an FBI investigation in May 2002
when several of his neighbors, considering him "suspicious," convinced his
landlord to break into his apartment in Abingdon,
Virginia.[60]
Upon finding computer equipment and books on electronics and flying, his
neighbors contacted the FBI. Without Bhatti's knowledge, the FBI obtained
secret warrants to search his apartment and computers. According to Bhatti and
a newspaper reporter who reviewed the sealed warrant and affidavit, the
Department of Justice used "evidence" they found from this search to apply for
a material witness arrest warrant. The evidence included: a New York Times article in Bhatti's
computer describing in detail the "dirty bomb" allegations against terrorism
suspect Jose Padilla, a phone number in Bhatti's address book of an old college
friend from Pakistan who now
works for Pakistan's
nuclear commission, magazines on planes and electronics, his multiple
computers, shotgun shells, and an antenna wire.[61]

Bhatti's son, Munir Bhatti, told HRW/ACLU that "the FBI told
me [my father] was the suspect, not a witness to anything. The FBI said he may
have a link to al-Qaeda."[62] After
taking Bhatti to FBI headquarters following his arrest, agents spent several
hours interrogating him, without counsel, about his personal activities,
travels, political beliefs, views on Israel, and attendance at a mosque.
"The impression I got was that they thought I was part of a sleeper cell,"
Bhatti told HRW/ACLU.[63]

Bhatti explained to the FBI that he had lived in the United States
since the 1960s and had worked as a doctor in a veterans' hospital for twenty
years. He told the agents he had not practiced Islam for years and that his
interest in planes dated back to his four-year service in the U.S. Air Force
National Guard. Bhatti also told the FBI that he was college buddies with the Pakistan
nuclear scientist in the late 1950s and had not been in touch with him since
the 1980s.[64]

Bhatti was jailed as a witness for six days. He slept on the
concrete floor because the jailhad
no free beds.[65] Following
a local media and advocacy campaign waged by his son, the court finally
released Bhatti on strict, supervised release conditions. Munir Bhatti
described to HRW/ACLU the effort to free his father:

I was on the phone twenty-four hours a day. I wanted to
make sure he was being represented. I realized that if they want to make a
case, they probably can. It doesn't take much to be a witness. So I wanted to
make sure my dad was fully protected. My fear was that he would be designated
an enemy combatant and shipped off to Cuba at anytime. Part of me felt
helpless; there was nothing I could do to stop it though-because everything was
under seal. It was stressful And I did not know what was going on. My dad was
not allowed to call me.[66]

Almost a month after his release, the government called
Bhatti to testify in front of a grand jury. He invoked the Fifth Amendment
right against self-incrimination after it became clear to him that the grand
jury was investigating his conduct. The government never charged Bhatti with a
crime nor called him to testify again.[67]

Abdallah Higazy

The government arrested Abdallah Higazy as a material
witness in December 2001 because it believed it had evidence suggesting his
involvement with the September 11 attacks. Higazy, an Egyptian graduate
student, was in the United
States on a grant from the U.S. Agency for
International Development (USAID) to pursue graduate studies at Brooklyn
Polytechnic.[68] On the
recommendation of USAID, during his orientation he stayed in the Millennium
Hotel in New York City, located near the WorldTradeCenter. He happened to be
there on September 11, 2001, while waiting for his permanent housing. Following
the attacks and evacuation of the hotel, a hotel security guard claimed
(falsely it turned out) that he had found a pilot's air-land radio in a safe in
the room where Higazy had stayed. The Justice Department had received reports
that the hijackers had received assistance from people in buildings close to
the WorldTradeCenter.
In light of the radio purportedly found in Higazy's room, Justice Department
officials believed that Higazy might have sent transmissions to the hijackers
who attacked the WorldTradeCenter
or received transmissions from them.[69]In essence, the government suspected
Higazy was a terrorist conspirator, not a mere witness.

A month later the real owner of the radio, an airline pilot,
came forward to claim his radio from the hotel. It turned out the radio had
been planted in Higazy's room by a hotel security guard who was inventorying
items hotel guests left in the hotel after they were evacuated on September 11;
the guard found the transceiver in another room but claimed to have found it
with Higazy's belongings.[70]
After detaining Higazy in solitary confinement for more than a month; obtaining
a coerced, false confession from him in an interrogation without counsel;[71]
and criminally charging him with making false statements to the FBI, the
government released Higazy in January 2002, thirty-four days after his arrest.

Jose Padilla

On May 8, 2002, the Justice Department arrested U.S. citizen and Muslim convert Jose Padilla on
a material witness warrant as he got off a commercial airliner at Chicago
O'Hare International Airport after having traveled through Europe and the Middle East. Federal officials believed he had conferred
with al-Qaeda leaders about plans to detonate a radiological "dirty bomb"
within the United States.[72] One month
later, after extensive court litigation, and just as a federal court was going
to consider a motion to release Padilla, President Bush designated him as an
enemy combatant.[73] Padilla
was then transferred to a military brig in South Carolina, where he has been held ever
since without charges or trial.[74]

The information used to support the designation of Padilla
as an enemy combatant was "essentially the same information which had been
provided to the judge who issued the material witness warrant."[75] The
government believed that al-Qaeda members "directed Padilla to return to the United States to conduct reconnaissance and/or
other attacks on behalf of Al Qaeda" and that he planned to "build and detonate
a 'radiological dispersal device' within the United States, possibly in D.C."[76] Secretary
Donald Rumsfeld described Padilla as "an individual who unquestionably was
involved in terrorist activities against the United States."[77]

The material witness law does not state a specific
limitation on the length of time a witness may be detained before testifying.
However, such detentions should not extend beyond the time needed to present
the witness or secure his testimony through deposition.

Under international law, administrative detention[78] may not
be indefinite, and under U.S.
law, any detention, especially non-punitive detention, must be narrowly
tailored.[79] If the
government has held the post-September 11 material witnesses solely to secure
their testimony before grand juries, as it has claimed, the detentions should
have been quite short. But according to the Justice Department itself, over
half of the witnesses it has arrested in the September 11 investigation have
been held for more than thirty days.[80]
Our research indicates that more than one-third of the material witnesses held
in connection with post-September 11 terrorism investigations have been held
for two months or more, often in solitary confinement. Our research also
indicates that the government has unnecessarily prolonged the detention of the
witnesses in order to question them as well as conduct other investigations
about them.

For example, Abdullah Tuwalah was held for six weeks without testifying, Nabil Al-Marabh
for three months, Eyad Alrababah for four months. Even when witnesses were
eventually brought before a grand jury, they frequently spent months in
detention first-e.g., Uzair Paracha spent five months in detention; Zuheir
Rouissi, six months.

The Justice Department has often stalled when courts pressed
it to secure the witnesses' testimony-it has sought continuances and looked for
ways to delay the testimony. Meanwhile, it has continued to interrogate the
witnesses and gather information about them from other sources, as if they were
suspects. While the Justice Department has stalled for time, the witnesses have
endured incarceration, as illustrated by the following examples.

Abdullah Tuwalah

In 2001, Saudi
national Abdullah Tuwalah was a scholarship student at MarymountUniversity in Arlington, Virginia.
The Department of Justice arrested Tuwalah on the allegation that he had information
material to the grand jury investigation of Saleh Ali Almari, another student
who had been briefly enrolled at Marymount. The FBI connected Tuwalah to Almari
because Tuwalah had met Almari through the Arab social club on campus.[81] Although
counsel for Tuwalah repeatedly informed the federal attorneys handling the case
that he was ready to testify, the government refused to present him to the
grand jury. Instead, according to his attorney, "the government just kept
interviewing him."[82] During
the six weeks Tuwalah was incarcerated as a material witness, the FBI
interviewed him multiple times; Tuwalah even agreed to a polygraph. According
to his lawyer:

The FBI interrogated him seven times and it was clear
from the beginning that he was cooperative. He said that he would come in
voluntarily and would cooperate during interviews. I've never seen interview
questions like this. The questions would go like this: the FBI would not even
ask questions they would just say "well he knows something" and we'd respond
"he knows what?" and then the FBI would come back and say "he knows." The
interviews were ridiculous.

Tuwalah never testified. The grand jury was convened but
they never put him on the stand. His lawyer said, "They wanted to investigate
him to see if he had anything or to say he had something. They were trying to
put together a mosaic of information-trying to piece him together with anybody
who knew anything."[83]

Tuwalah was never charged with any crime and has since
returned to Marymount to complete his studies. The government never brought
terrorism-related criminal charges against Almari.[84]

Ali Ibrahim Ahmed

Ali Ibrahim Ahmed was one of the material witnesses jailed
in connection with the controversial Detroit
"sleeper cell" case, United States v. Karim Koubriti.[85]In that case, the defendants were
convicted of providing material support to terrorists by acting as a "sleeper
cell"[86]-charges
that were later thrown out because of prosecutorial misconduct.During the pre-trial proceedings, the
government jailed Ahmed for three months.[87]
The material witness warrant did not specify whether the government was holding
Ahmed for the trial or for grand jury proceedings. Ahmed's attorney believes
the only purpose of Ahmed's incarceration as a material witness was to give the
government time to investigate his possible involvement in the Sleeper Cell:

The biggest issue was the time period that he was being
held while not being brought before a grand jury. It took the government two to
three months to bring Ahmed before a grand jury. The government was looking
at these cases to see how big a deal he will be. They wanted to keep their
options open-investigate a case against him before they make a decision.[88]

On September 1, 2004, the District Court dismissed the June
2003 convictions of Karim Koubriti and Abdel-Ilah Elmardoudi because a Justice
Department report found widespread prosecutorial misconduct in the case,
including misrepresentation of evidence and misleading of the court.[89] The
Justice Department's report focused its criticism on the conduct of Assistant
United States Attorney John Convertino, who authorized and signed the
government's application to arrest Ahmed and Rouissi as material witnesses.[90]

Nabil al-Marabh

Nabil al-Marabh was also ostensibly held as a material
witness in the Koubriti case. Press
accounts indicate that federal agents considered him a key terrorism suspect in
the Detroit Sleeper Cell investigation, placing him high on the FBI's
most-wanted list.[91] Al-Marabh
was incarcerated as a material witness for threemonths; he was held in the high-security federal detention
facility in Chicago.[92]His lawyer was not permitted to see
any documents justifying the material witness arrest. He filed four motions
with the court to release al-Marabh and to expedite his testimony. The
government did not respond to any of these motions, and the court never ordered
it to do so. According to al-Marabh's lawyer:

The case was unusual in the sense that the government
used the material witness law for a purpose for which it was not designed. The
government never had the intent to put Nabil in front of a grand jury. There
was no reason for the continuances. He said he was willing to testify, ready to
testify, and would appear as a witness. I can't see a legitimate reason for not
having him appear in front of a grand jury. He was ready to give his testimony.[93]

After Meyer's fourth motion to the court, the government
transferred al-Marabh to Detroit,
still holding him as a material witness.There is no record of him testifying and the government never charged him
with any terrorism-related crime. He was then arrested on immigration charges
and ultimately deported to Syria
in 2004.[94]
While he was in jail, his mother died of a stroke.[95]
And after he was deported, he was soon arrested and detained by the Syrian
police and disappeared; while his family had brief contact with him upon his
deportation, they have had no contact with him at all in almost a year and do
not know what has happened to him.[96]

Continued Restrictions on Liberty
after Release

Some material witnesses were released from detention but
continued to be subjected to conditions restricting their liberty. In these
cases too, the restrictions lasted far longer than necessary to secure
testimony in a criminal proceeding.

Ismail Diab

As of June 2005, the government still has not obtained the
testimony of material witness and U.S. citizen Dr. Ismail Diab, although Diab
has had his liberty restricted-by incarceration and then supervised release-for
almost eighteen months.[97]

On March 1, 2003, the government arrested Diab, a researcher
in animal genetics, in Syracuse,
New York, where he lives with his
wife and three children.[98] The
government alleged Diab had testimony relevant to the criminal case against
four defendants facing trial for conspiring to violate U.S. economic sanctions against Iraq through their donations to and
solicitations for Help the Needy, a charity that has supported orphans and poor
children in Iraq
since 1995.[99]

Within a week after his arrest as a material witness, the
district court released fifty-two-year-old Diab on a $20,000 bond, under the
conditions that he wear an electronic monitoring bracelet, be largely confined
to his home, surrender his passport, and remain subject to a curfew until the
government obtained his testimony.[100]
After the government failed to take Diab's deposition for almost three months,
the judge removed the electronic monitoring and curfew.[101]

Abdullah al-Kidd

Similarly, the government restricted the movement of Abdullah
al-Kidd for almost fifteen months. Al-Kidd was arrested as a material witness
on March 16, 2003 in connection with the trial of Sami al-Hussayen, who was
facing criminal visa fraud and terrorism-related charges. After spending
fifteen days jailed in high-security conditions, al-Kidd was released on the
conditions that he live with his wife at his in-laws' home, confine his travel
to four states, surrender his passport, and meet regularly with probation
officers. He was never, however, called to testify at the trial. Indeed, even
after al-Hussayen's trial ended (al-Hussayen was found not guilty on most
counts; the jury was hung on others), the Justice Department failed to move to
dismiss the material witness warrant for al-Kidd.[102]
Upon a motion of al-Kidd, the court dismissed the material witness warrant
after the close of the al-Hussayen trial.

Reluctance to Grant Immunity to Material Witnesses

The Justice Department's reluctance to grant immunity to
material witnesses for their testimony further demonstrates that it has been
interested in the witnesses held in connection with the September 11
counterterrorism investigation as possible criminal suspects, not as mere
witnesses to a crime. When the Department of Justice is interested in eliciting
testimony from a witness who it does not consider a suspect, it can grant the
witness immunity, i.e., it will provide a guarantee that the witness will not
be prosecuted based on the testimony. Granting immunity to a witness allows him
or her testify freely, without fear that the testimony will be used against the
witness. Granting immunity also allows the government to compel testimony if a
grand jury witness invokes the Fifth Amendment privilege against
self-incrimination.[103] On the
other hand, prosecutors do not want to grant immunity when seeking testimony
from targets of the grand jury investigation, because the prosecution wants to
make full use of the information gained from the testimony to later prosecute
the suspect.

In post-September 11 material witness cases, witnesses have
frequently invoked their Fifth Amendment right against self-incrimination and
have been reluctant to testify before a grand jury absent immunity, because the
government has had a pattern of subsequently seeking to implicate them in any
crime-often based on information it obtained from grand jury testimony or
informal interviews. The Justice Department consistently has refused to grant
such immunity, undoubtedly because it viewed the witnesses first and foremost
as suspects. Chris Schatz, federal public defender of Oregon, who was one of the lawyers who
represented Brandon Mayfield in May 2004, described his attempts to secure
immunity for Mayfield:

They had no intent to bring him in front of a grand jury.
If you were never going to give him immunity then it was a questionable abuse
of the process. If their focus is not on prosecuting then what do you care
about immunity in negotiations? If it's your objective to get testimony, then
the refusal to get immunity was an abuse of the law.[104]

Mayfield claims, and court documents confirm, that the
government threatened him with capital punishment during his immunity
negotiations:

They were threatening me with capital charges. In
proffer discussions they said they were going to give me limited immunity. But
they believed it was me. They pretty much told us, "We have enough to indict
you but not enough to prosecute."[105]

John Meyer, the attorney for material witness Nabil al-Marabh,
also described the government's refusal to negotiate over al-Marabh's immunity:

From the day he arrived in Chicago, the government was not going to give
him immunity and compel his testimony. Instead of calling Nabil, the government
made continuances at every stage. It was clear they didn't want to put him in
front of the grand jury in hopes of charging him with other crimes.[106]

Eric Sears, a former federalprosecutor, similarly described the government's reluctance to
give immunity to his client Mohamad Kamal Elzahabi:

The government wanted him as a material
witness so he would voluntarily talk and go before a grand jury. But they
weren't willing to give him immunity. And it's a no-brainer-why would I let my
client talk with the government as a witness if they're not giving him
immunity. If they want his testimony, they should give him immunity.[107]

Criminal Charges against Material Witnesses

[I]ndividuals detained as material witnesses are rarely charged with
crimes.

The Justice Department has ultimately brought criminal
charges against twenty-nine of the material witnesses, accusing seven of
terrorism-related crimes, and brought immigration charges against at least
twenty-eight. From our review of court documents, it appears that in many of
these cases, the charges have been based on evidence and statements the
government has obtained after the material witness was arrested-either from
interrogations of the witness himself or from investigations into other
sources. The Justice Department has also used evidence it obtained from
interviewing the witnesses before their arrest and when agents searched their
property. In at least fifteen of these cases, the witness never testified
before a grand jury, and the government filed the criminal charges only when a
court indicated it would release the witness because of the government's delays
in bringing the witness before the grand jury.

By filing criminal or immigration charges, the Department of
Justice has been able to continue to hold the former material witnesses in prison
while it has continued its investigations. In some cases, the unrelenting
pursuit of the witness suggests that the government has continued to believe
the witness was involved with terrorism, even though it could not develop
evidence sufficient for terrorism-related charges.

Soliman Biheiri

In June 2003, the FBI arrested as a material witness Soliman
Biheiri, then a U.S. citizen
with three U.S.
citizen children. The Justice Department suspected Biheiri of doing financial
work for Abu Marzook, a well-known leader of Hamas. It informed the court that
it intended to bring Biheiri in front of a grand jury investigating terrorist
financing networks in Chicago.For
two months, the government never called Biheiri to testify in front of a grand
jury but continued to argue in court that his detention was necessary because
of his alleged connections to terrorist suspects.[109]

Just as the court was going to order Biheiri released, after
he had been held without charges in high-security jails for more than two months,
the government charged him with an obscure non-terrorist related crime:
unlawful procurement of naturalization based on a false statement he had made
in 1990 immigration applications.[110]
In 1990, Biheiri had listed himself as the vice president of his company on
immigration documents, when in fact he was the president. The government used
this misstatement to allege that Biheiri committed fraud on his 2000
naturalization application, when he answered "no" to the question of whether he
had ever committed a crime for which he had not been convicted. According to
his attorney:

It's not a coincidence that they held him and never put
him in front of a grand jury and then dismissed him as a material witness when
they had built up charges against him. My sense is that they had nothing on
him to hold him as a material witness. They were just trying to buy time to
find something. The irony is that he was completely innocent of any terrorist
allegation. The government was never able to find a credible ground to bring
terrorism charges-they never produced enough proof to even charge him. Instead,
they charged him on a completely unrelated immigration charge, which they based
on a visa application they dug up from 12 years ago. And even then, when the
government couldn't obtain an indictment on Biheiri for terrorism charges, the
government sought a ten-year enhancement for terrorism associations during
sentencing. The judge finally got angry with the prosecution and rebuked the
government for alleging that Biheiri had terrorism connections without any
basis.[111]

In January 2004, Biheiri was convicted of the criminal
document fraud charges after a jury trial and given a one-year sentence, the
mandatory minimum, with credit for time served. Days before Biheiri was scheduled
to be released in June 2004, the Department of Justice brought new criminal
charges against him. Using the same facts from his first conviction, the
government charged Biheiri with one count of using his U.S. passport unlawfully because it
was procured by a false statement.[112]
The government also charged Biheiri with two counts of making false official
statements to government agents based on statements Biheiri made when he was
first questioned by the FBI without an attorney. In October 2004, a jury convicted
Biheiri of one count of fraud.

Mohamad Kamal Elzahabi

The Department of Justice arrested Mohamad Kamal Elzahabi as
a material witness in Minneapolis,
Minnesota, in May 2004. He was
incarcerated in Minneapolis for about three
weeks[113] and then
transferred to the Special Housing Unit of the MetropolitanCorrectionalCenter
in Manhattan,
where he was held in solitary confinement for two weeks. During these five
weeks of incarceration, Elzahabi was never brought before a grand jury.

When the presiding judge indicated that he would release
Elzahabi if the government did not call him to testify in front of a grand
jury, the government filed two charges against him for making false statements
to the FBI. As his attorney described the situation:

We had a time deadline-the government had to do
something in order to justify keeping him in detention as a witness; he hadn't
testified at all. Judge Castel told the government, "Look you've got to produce
him to the grand jury; what are you doing?" The government basically hemmed and
hawed. It was clear to me if the government didn't do something Mohamad may be
released; Judge Castel would lose his patience. The government understood this,
and the day before we were supposed to go back to court, where push would come
to shove, he suddenly got charged and sent back to Minnesota.[114]

IV.High
Security Arrests and Incarceration

I say why all this?
For what? They treated us like professional terrorists. They put us in cars and
had big guns-as if they were going to shoot people, as if we were Osama bin
Laden. They didn't let us speak, they didn't let us ask why we were in
detention. I never knew for how long we would stay in jail. It felt like we
would stay forever I didn't even know why I was in jail.

- Tarek Omar, arrested in October 2001 by the Department of
Justice as a material witness and held in solitary confinement in a federal
prison in Chicago.
After his release, the FBI apologized for wrongfully detaining him.[115]

In allowing the arrest and detention of material witnesses,
Congress emphasized that such witnesses are not to be considered a danger to
society.[116] Yet from
the moment of their arrest until the end of their detention, all of the
material witnesses whose cases are described in this report have been treated
as if they were high profile terrorist suspects and not merely individuals with
important information. The U.S.
government has used numerous agents with drawn weapons to arrest the witnesses,
jailed them in solitary confinement, and subjected them to extraordinarily
harsh security measures.

Excessive Force in
Arresting Witnesses

Arrests should only be made with the amount of force
necessary for the circumstances. Yet material witnesses accused of no
wrongdoing have described their arrests as violent and humiliating experiences.
Most material witnesses have been arrested in their homes or in public by a
squad of armed agents, often with their guns drawn. They have been thrown
against police cars, searched, handcuffed, and often shackled. Government agents
then have transported witnesses in high security vans and airplanes to jail
facilities, where they have been strip searched. The arresting agents sometimes
have used abusive language and usually refused to tell the witness why they
were being arrested. The sudden and aggressive arrests, without explanation,
frequently have made witnesses fear that they have done something grievously
wrong. Such arrests have often been accompanied by extensive searches conducted
by federal agents of the witnesses' houses, cars, and businesses, as their
wives, children, and colleagues watched.

Mujahid Menepta

On October 10, 2001, Mujahid Menepta stepped out of his
workplace, in Norman, Oklahoma, where he worked as a
rehabilitative therapist for disabled children. He was greeted by more than
twenty agents, with their guns pulled.[117]
Menepta was taken aback; he had already voluntarily cooperated with the FBI in
three interviews sharing his knowledge of a terrorist suspect whom he knew
through the local mosque. With neighbors watching, the agents told him not to
move and threatened to shoot him if he did. Menepta described his arrest as
follows:

At around 8 a.m., I happened to walk out the front door
and I was accosted by about twenty-two agents and four to five cars. They said
"We didn't have twenty to get John Gotti." Meaning, if I didn't surrender in
twenty [seconds] they'd shoot. I was told: "Take one more step [and we'll
shoot]." The agents were on the perimeter. They came to the door. Two agents
came up to me and said: "Mujahid Menepta you are under arrest."

They did not read me my rights. They did not tell me I
had the right to a lawyer. They took me down to the vehicle in the street and
put their machine guns in the truck.[118]

Mohdar Abdullah

On September 21, 2001, Mohdar Abdullah was driving a veiled
female Muslim friend to work in San
Diego, California,
because she had recently been assaulted and was afraid to be alone in public.
At an intersection, armed government agents surrounded his car. His friend
fainted. Like Menepta, Abdullah was surprised by the atmosphere of violence
surrounding his arrest, because he had previously met voluntarily with the FBI
several times to provide information about two suspected hijackers with whom he
had worked almost a year earlier. As Abdullah described the arrests:

Five to six cars surrounded my car. The agents pulled
out shot guns and told me to get out of the car or they will shoot me. They
told me they were about to shoot me. I was dropping off a coworker and she
fainted. They had to call an ambulance. I was shackled, surprised.

I asked what's going on? I've been so helpful. But
three guys told me to put my hands on the car, they patted me down and shackled
me. I asked what am I arrested for? Am I charged with something? I am supposed to
meet [the FBI agent who was questioning him] at 10. I got no answer. They
shoved me against the car and handcuffed me.

My friend in the car fainted-they had to call an
ambulance. She was unconscious for awhile. She was so afraid in the car. I was
taking her to work because there was so much hostility. After she had been
harassed she was intimidated to go to her workplace.

They didn't tell me why I was arrested-they said they'd
explain in the main office. They didn't read me Miranda rights.

I got in the car. They were so disrespectful and so
rude. They told me to "shut the fuck up."[119]

Albader al-Hazmi

On September 12, 2001, Dr. Albader al-Hazmi, who was living
with his wife and young children, woke up in his house to five FBI agents with
guns drawn. A medical doctor doing his residency in San Antonio, Texas,
al-Hazmi had no previous criminal record or interaction with the FBI. The
government based its arrest of al-Hazmi on the fact that he shared the last
name of one of the hijackers and had been in phone contact with someone at the
Saudi Arabian Embassy with the last name "bin Laden" (which is a common Arabic
name).[120] After
the government arrested al-Hazmi, agents searched his house for twelve hours,
turning his house "upside down," with little regard for his wife and young
children.[121] He was
detained for two weeks in jails in Texas and New York before being
released. He never testified before a grand jury or court.

Brandon Mayfield

When FBI agents arrested Oregon immigration and family attorney
Brandon Mayfield at his law office, a group of agents searched his cars, law
office, and home. Although Mayfield tried to keep his client files
confidential, federal agents seized almost all of his files. Meanwhile,
Mayfield's wife, Mona Mayfield, was at their house as dozens of agents searched
it for more than five hours. FBI officials forced her to sit at the kitchen
table and restricted her movement as they searched and seized items:

A half hour [after the federal agents entered], twelve
other agents came in Two agents told me to sit at the table. The FBI said
that we need to contain the situation, and I could not watch. They searched the
house from 10:30 to 3 [p.m.]. I asked if I could make a phone call; they said
no I told them I needed to go and pick up the kids. They told me if you leave
that you cannot come back. So I stayed until I could.

They were everywhere, and they piled all of our stuff
in the living room.

I asked to make phone calls. At first they would not
let me. Eventually they let me call Brandon's
mom. I guess they were questioning her too and would not let her pick up the
phone, so I left a message. So then the phone rings and I pick it up and it's
Mike Isikoff from Newsweek. He started asking all these questions. I
asked the female agent what's going on? How did Isikoff know? She just said I
don't know. They wouldn't let me pick up the phone again.[122]

"Evansville
Eight"

The FBI frequently has transported witnesses to detention
centers in a manner consistent with the assumption that they were criminal
suspects who posed a serious threat to national security. For example, when the
government transported eight material witnesses from Evansville,
Indiana, to a federal detention facility in Chicago, Illinois,
they were accompanied by armed marshals and kept in shackles throughout the
flight. According to one of the Evansville Eight, the government closed down
the Chicago O'Hare airport for their arrival. A fleet of government cars then
transported the material witnesses from O'Hare to the ChicagoMetropolitanCorrectionalCenter.[123] As one
of the Evansville
material witnesses described the experience:

On the second morning we are taken to the Evansville airport. There
are around three cars and many people. All the security guards had a gun. It
becomes serious. Lots of guards surrounding us, no one can go in to the
airport. We wait for a plane. Then a huge plane came. The first time a plane
like that ever come in years-Evansville
was just too small.

The guards were guarding the airport. Six plus guards
were guarding the airport. Two lines of people, behind me and in front of
me-huge, huge people.

Then we go to Chicago
We landed in the El Al [Israeli airline] terminal. All the people went out.
After this we are put in the van. So many cars in front of us, and so many
behind us. The guns were pointed out of the window, and the sirens were on. All
the traffic was stopped.

I think I'm dying. We'll go somewhere and die. For
what, for nothing?[124]

The Justice Department's use of aggressive tactics to arrest
persons who were supposedly only material witnesses highlights the authorities'
real intentions. Subjecting material witnesses-a number of whom had already
been providing information to the authorities-to abusive arrests using
unnecessary force is a dubious tactic if the authorities truly want cooperative
witnesses. Such arrests are more likely to serve only to alienate witnesses and
their families. Whether as a security precaution or to procure confessions, the
aggressive tactics the government has employed to arrest and detain material
witnesses are another indication that the authorities really have considered
the material witnesses to be criminal suspects.

High Security Conditions of Detention

The government held
them like they were criminals. They treated them like thugs, threw them in high
security as if they were felony convicts. They had to wear orange jump suits.
There were in the cells 24 hours a day. They were not allowed to go anywhere
unless they were chained at the waist. They were physically pushed up against
the wall. Guards would step on their leg chains. They were scared to death.
When Awadallahwas being questioned
by the FBI, his chains were rattling.

The government has jailed almost all of the material
witnesses held in connection with post-September 11 counterterrorism
investigations under maximum security conditions, sometimes in the same special
units holding the most dangerous prisoners in the facility. Many have been kept
in solitary confinement twenty-four hours a day, with little time outside their
cells for recreation. Some have been held in windowless cells.In some cells the lights have been
kept on morning, noon, and night. Prison officials have handcuffed and shackled
witnesses every time they have been removed from their cells, even during court
appearances.[126]
Particularly in the early stages of their detention, they have not been allowed
to call their families or friends. Some of the material witnesses have endured
physical and verbal abuse by prison guards who accused them of being
terrorists. Material witnesses have consistently described their time behind
bars as harrowing.

According to the U.S. Attorney's office, the Justice
Department had a general policy that all inmates, including material witnesses
"who were at the MetropolitanDetentionCenter
in Brooklyn in connection with the
investigation into the September 11th terrorist attacks were designated
high-security inmates and handled in accordance with the procedures for such
inmates."[127] The
presumption at the Metropolitan Detention Center (MDC) in Brooklyn, the main
New York federal detention facility where many material witnesses have been
held, has been that the witnesses were considered to be associated with
terrorist groups until proven innocent:

The warden determined that until MDC officials had any
concrete evidence from the FBI or other folks, that there was not a terrorist
association or anything of that nature, that the MDC would have to keep the
material witnesses separate and special precautions would apply.[128]

Mohdar Abdullah described his detention conditions as a
material witness in the MetropolitanCorrectionalCenter
in Manhattanand the MDC in San Diego:

The first month was the worst month I ever experienced
in my life. I was deprived of making any legal calls, any social calls. I was
treated so badly. I was depicted as a terrorist. That was how I was being
treated. As a result they disrespected me a lot.

When I was transferred, the U.S. marshals were beyond terrible.
I cannot find any word to describe them. They have no sense of humanity at all.
They dragged me with my shackles on. They physically and verbally harassed me
and called me all kinds of names. They put me in humiliating situations.

They would say that you're a terrorist, call us
"fucking rats," and drag [us] with our shackles on. Every time they'd look at
us they'd spit on the floor. They'd say that they are going to hang you; they
are going to kill you. That you don't belong here.

The cell was small and really dirty. They didn't give
me any personal hygiene things-one bar of soap and no tooth paste I saw no
sunlight in Manhattan.

We were always being viewed as a terrorist. They'd tell
us that you are about to be prosecuted. Once a U.S.
attorney told me if I don't talk now, I will talk later-they would pass a
recommendation onto Yemen or
deport me to Algeria.[129]

Harassment and Abuse in Jail

Many material witnesses told HRW/ACLU that they were
subjected to derogatory comments by prison guards. More troubling, several
material witnesses claimed they were physically abused while in federal
custody.[130]
They also felt humiliated by what they considered gratuitous strip searches by
multiple guards, often in public places. Albader al-Hazmi, held as a material
witness at MDC Brooklyn told HRW/ACLU:

I was searched naked many times sometimes twice daily
in front of many guards. The guards, they were enjoying searching us naked.
When they felt like it they would beat us. One of the guards said to me while
beating me say thanks to Allah.[131]

Some witnesses told HRW/ACLU that many guards assumed they
were convicted terrorists and insulted their race and religion. Ayub Ali Khan,
who was also held in the Special Housing Unit in MDC Brooklyn, faced continuous
hostility from the prison guards for over a year. He said:

I was transferred to a cell with six or seven guards to
solitary confinement in the Special Housing Unit, or the "ninth floor hole."
The room was maybe six-by-five feet. I was in small cell for twenty-four hours
a day with the lights on. Guards came every ten to fifteen minutes and banged
on the door. They look through the hole and stare and looked at me. For two
months, I left the cell only for interrogations. Later I was allowed outside
after two months but they would leave me out in the freezing cold.

I didn't sleep for one or two months. The guards would
bang on the door all night.

They would say, "This is the guy-the Taliban guy," or
call me "Khan Taliban." The guards said so many bad things. They told me: "You
won't ever see your family. You're going to die here. Do you smell the WTC [WorldTradeCenter] smoke? You're
gone. How would you like to die? With the electric chair?"[132]

One of the material witnesses, Tony Oulai, a citizen of the Ivory Coast, claims interrogators beat him while
he was detained in Baker County
Detention Center, Florida.[133]
The other cases of physical abuse typically occurred at the hands of prison
staff. For example, Khan told HRW/ACLU that:

When I arrived, the guards said "these are the guys
involved with the WTC." I had rough treatment, I was thrown on walls, there was
pushing on either side as they hand and leg cuffed me. I was strip and cavity
searched in front of four or five guards.[134]

[Whenever I was taken out of my cell] they would twist
my hands. My feet were shackled and guards would step on chains. I got a deep
cut on my feet. I was stripped too many times to remember and hit on the back.
I would be pushed against the wall. Whenever they took me to the FBI, guards
would twist my hands and fingers and tell me to "Just shut up."[135]

In addition, Awadallah alleged physical abuse at MetropolitanCorrectionalCenter in Manhattan:

After being examined, a guard caused his hand to bleed
by pushing him into a door and a wall while he was handcuffed. The same guard
also kicked his leg shackles and pulled him by the hair to force him to face an
American flag.

The next day, October 2, 2001, the marshals transported
Awadallah to this Court. With his hands cuffed behind his back and bound to his
feet, the transporting marshals pinched his upper arms so hard that they were
bruised. See id. In the elevator, the marshals made his left foot bleed by
kicking it and the supervising marshal threatened to kill him.[136]

In April 2003, the Inspector General of the Department of
Justice issued a report documenting physical abuse endured by detainees swept
up in the government's post-September 11 investigation, including the abuse of
material witness Ayub Ali Khan.[137]

V.Bypassing
Judicial Review

Judicial review is the paramount protection against
arbitrary detention and is recognized as such by international human rights law[138] as well
as U.S.
domestic law.[139] Judicial
review in the material witness context should offer an important safeguard
against arbitrary arrest and prolonged detention. However, after extensive
investigation, we are not aware of a single instance in which a court has
denied a government application for a material witness warrant related to the post-September
11 investigation.

There are likely a number of factors that have contributed
to the government's success in securing material witness warrants. One
significant reason has been a general reluctance by some courts to scrutinize
closely the government's proffered reasons for needing to arrest and detain
witnesses. An additional reason has likely been the fact that the government
sought arrest warrants for almost all of the seventy material witnesses we
document in this report in connection with grand jury proceedings, which are
preliminary investigatory proceedings controlled by the prosecution and
conducted largely in secret. The grand jury context has made it extremely
difficult for courts to conduct meaningful scrutiny of whether a witness has
material information.

In grand jury investigations there is not necessarily a set
crime or established set of issues against which to assess materiality.[140]
A grand jury investigation is convened and run by the Department of Justice to
"determine whether a crime has been committed and whether criminal proceedings
should be instituted against any person."[141]
To accomplish its task, the grand jury must "inquire into all information that
might possibly bear on its investigation until it has identified an offense or
has satisfied itself that none has occurred."[142]The Justice Department "has
exceedingly broad powers of investigation"[143]
and has wide latitude in defining both the scope of the grand jury
investigation and who has information that might be useful to it.

Because grand jury investigations are broad in scope and are
run largely by the prosecution, some federal courts have established an
extremely low threshold to determine whether the government has met its burden
in proving a witness has material information. For example, the Second Circuit
Court of Appeals has noted that in grand jury material witness arrests, "The
judge [must] rely largely on the prosecutor's representations about the scope
of the investigation and the materiality of the testimony."[144]
Thus, some federal courts have held that "a mere statement by a responsible
official, such as a United States Attorney, is sufficient to satisfy" the
requirement of materiality.[145]

In practice, then, court approval of material witness
arrests in the context of grand jury proceedings has often been no more than a
formality. Indeed, Mary Joe White, former United States Attorney in the
Southern District of New York (until January 7, 2002),told HRW/ACLU that she could not recall a judge ever denying the
government's request for a material witness warrant in connection with the
September 11 investigation.[146] HRW/ACLU
reviewed over a dozen affidavits submitted by the government to support
material witness arrests and obtained information on numerous others. The government
has frequently used conclusory statements and weak inferences to connect
witnesses to a grand jury investigation of terrorism-related crimes, asserting
that individuals had information relevant to terrorism investigations based on
their possession of commonly read New York Times and Time articles
on al-Qaeda suspects, similar last names to hijackers, and attendance of the
same mosque or college club as suspects in the investigation.[147]
Furthermore, the government has referred to evidence obtained from unnamed
"sources" and from sources whom the FBI agents did not know personally.[148]

VI.Failure
of Safeguards for Material Witnesses

When HRW/ACLU interviewed former U.S. Attorney Mary Jo
White, she expressed her belief that the use of the material witness law to
detain suspects has been acceptable because numerous safeguards exist to
preclude wrongful or arbitrary detentions. Unfortunately, our review of the
post-September 11 use of the material witness law suggests that existing
safeguards have been inadequate and those that do exist have not been
effectively enforced.

Right to Appear
Promptly before a Judge

Under international and U.S. law, a person deprived of his
or her liberty must be promptly brought before a judge or judicial officer.[149] HRW/ACLU
found that in more than two dozen of the seventy cases we uncovered, the
government did not provide a detention hearing for three or more days following
arrest. In ten of these cases, witnesses never received any kind of judicial
detention hearing at which they could contest their detention.

U.S.
law also requires that a court issue a written statement explaining the reasons
why a material witness was ordered detained.[150]
Yet our research indicated that judges routinely failed to issue such written
findings. For example, Albader al-Hazmi was not taken to a court for seven days
after his arrest. During this time, he was held in solitary confinement in New York. When he
finally appeared in court, he was kept in restraints. The court proceeding
lasted less than five minutes, and the court never issued a written statement.[151]

One of the most egregious delays we uncovered was that of
material witness Ayub Ali Khan. He was not taken before a judge for fifty-seven
days following his arrest, nor was he provided an attorney, despite his
requests. During this period, the government interviewed him at least six times
without counsel. Khan was never found to have any terrorist connections nor was
he criminally charged with terrorism-related crimes.[152]

In addition to the delays in presenting witnesses to judges,
the requirement that material witnesses be present when federal officials made
status reports to the court was routinely ignored.[153]

Failing
to Provide Witnesses with Warrants or Reasons for Arrest

In almost allof
the material witness cases investigated by HRW/ACLU, the Department of Justice
has sought at every opportunity, from the moment of arrest through release, to
prevent him from obtaining information about the government's suspicions or
reasons for arrest that might allow him to respond and possibly secure his
release. For example, as one witness described:

I kept asking what am I being charged. They would
respond you're not being charged with anything. I asked why am I here. They
said I was a witness. I said a witness to what? They said they couldn't tell
me. It was like playing "Who's on First?" [an Abbott and Costello routine] for
two hours.[154]

The Justice Department has also sought to block the
witnesses' lawyers from being able to get information, sometimes leaving them
as much in the dark as their clients. Even when lawyers have had access to
documents, many have been subjected to restrictions that severely limited their
ability to mount a successful case for their clients.

Most of the seventy witnesses
held in connection with September 11 counterterrorism investigations were not
presented with an arrest warrant at the time of their arrest. Indeed, in at
least thirty-six cases, the Justice Department failed to give the witnesses any
reason for their arrest at the time they were initially detained. This violates
international[155] and U.S.
law;[156] both
provide that persons have the right to be informed of the reasons for their
arrest or detention.

Ultimately, most of the witnesses have learned the basic
allegations underlying their arrest and detention as material witnesses, but
throughout their detention, the government has refused to provide them with the
affidavit or underlying evidence used to detain the witness. Even criminal
suspects eventually get to see the government's evidence suggesting guilt or
innocence, and there are clearly defined procedures for when and how that
evidence is to be transmitted to the suspect. By contrast, post-September 11
material witnesses often had no idea when, if ever, they might get to know the
evidence underlying their detention. Indeed in many cases, they never did
receive the exculpatory or damming evidence the government had to justify their
arrest.

In more than a dozen cases, the government also barred
witnesses' lawyers from viewing the affidavit supporting the arrest, or when
access was allowed, it secured orders barring the lawyers from disclosing the
material to their clients.

Tajammul Bhatti

When FBI agents arrested Tajammul Bhatti,in Abingdon, Virginia in June 2002,
they informed him only that he was a suspect (even though he was arrested as a
material witness), but they initially did not disclose what he was suspected of
doing. After his arrest, federal agents interrogated him without counsel about
his religion and beliefs, barred public access to his court proceedings, and
kept him in the dark about the basis of his detention. Bhatti became deeply
concerned:

At first I felt initial shock and fear. I knew [several
hundred] people had been in Guantnamo for almost two years and their families
had no idea how they are. I didn't do anything but I knew neither did many of
those guys. I got a bit panicked. They didn't tell me how long I'd be detained
and no one could know what was going on.[157]

"Evansvillle Eight"

When the Department of Justice arrested eight material
witnesses from Evansville, Indiana in October 2001,[158]
none were informed of the evidentiary basis for their arrest. The men-all of
whom were Muslim and of Middle Eastern descent-were also not informed of their
right to an attorney nor permitted to contact an attorney. The day after the
arrests, the federal court in Indiana
appointed an attorney for each witness. The court then conducted an all-day
session with the witnesses' court-appointed counsel, the prosecutors, and FBI
agents. The witnesses were not permitted to attend and had to wait in holding
cells in the court jail. At first, the government attorneys persuaded the court
to prohibit the witnesses and their court-appointed lawyers from seeing the
warrants and supporting affidavits because of national security concerns. By
the end of a full-day session, the witnesses' lawyers, who had still not met
their clients, succeeded in receiving permission to review the documents. But
upon the strong urging of the Justice Department, the court ordered the
attorneys not to disclose the contents of the warrant or affidavits to anyone, including their clients. The attorneys
were, however, permitted to give their clients advice in response to their
clients' inquiries.[159]

As Mark Foster, the lawyer for one of the witnesses
described:

I was only allowed to see the warrant and affidavit in
the courtroom. We had to fight for permission to see the supporting materials.
We couldn't leave the room. The government just went on about national
security. Finally, we viewed the affidavit in the presence of the government
attorneys.

We were not permitted to discuss the facts of the
affidavit with our client. The judge only allowed us to answer the client's
questions and give our clients advice. We were not allowed to share the basis
of the warrant or the reason for the arrest with our clients. It was highly
unusual. I don't know how he expected us to honestly and ethically represent
these guys. And when we did meet with them, there was no privacy There were
eight people held in two cells.[160]

By late afternoon, the eight lawyers were finally permitted
to meet with their clients before the witnesses' first court appearance. But
the lawyers were not able to disclose or even intimate the basis of the
material witness warrant. The only issue the lawyers discussed with the
witnesses was whether they should agree to be transferred to another
jurisdiction and to waive any objections during the court proceedings.[161]

During the hearing that afternoon, the lawyers for the
material witnesses did not-and could not-challenge the warrants because they
were not permitted to have substantive discussions with their clients. The
closed court proceeding was limited to the judge asking each witness if he
agreed to change venue to Virginia, where he would testify in front of a grand
jury. Each witness, confused and scared by the process, agreed to waive any
objection to being transferred.[162]

After the five-minute session, the government shackled the
men and put them in a van to return them to the nearby Henderson County Jail.
On their way back to the jail, the van turned around and took them back to the
court. The government had made a last-minute decision to convene the grand jury
in Chicago.
During the second court hearing, the men went through the same routine again:
the judge asked whether they waived objections to being transferred, and each
said, "Yes." The men found the experience to be confusing and harrowing:

No one said anything about why we are witnesses. The
next day they took us from the Henderson [DetentionCenter] to the federal building. We saw
the judge around 5 or 6 [p.m.]. We were waiting all the day in a cell-in jail.
No one was telling us anything. We asked: "What is going on? We are material
witness for what?" No one knew what was going on. It felt like we would not see
our family ever again, we don't know why we are here. We were thinking, who
will send our families money? What's going on? What happened?

Before we went into court, we saw the lawyer for myself
and Tarek Albasti. Tarek asked what's going on. The lawyer said, "I can't tell
you." I said, "What do you mean you can't tell us?" The lawyer says it's
something so so so big, and I can't tell you. It made me crazy. Here is my
lawyer, how can he not tell me what is going on?[163]

Another Evansville
witness recounted:

This lawyer came to me, and he told me that we had to
appear before a federal court and that we need to waive our rights; that's why
they are holding court. And he told us that if we didn't waive our rights,
it's going to take a long time, and they are still going to detain us for who
knows how long. But if we waive our rights, the thing will be quick and we'll
go on.

I asked, "What are we accused of, what's going on? What
is this material witness thing?" He said: "I have a gag order; I can't tell you
anything." That's my lawyer telling me that. So of course I said: "[If] you
can't tell me, do whatever you want to do, why are you asking me anything."

It was just crazy. You feel useless and hopeless and
just there is nothing you can do. There was nothing I can do. I didn't
understand what was going on. We had no idea.[164]

Federal marshals transferred the eight witnesses to MetropolitanCorrectionalCenter in Chicago, where they were placed in solitary
confinement. None of the eight material witnesses had another court appearance
or detention hearing. For the next ten days, the witnesses sat in their cells
wondering what was going on, why they had been detained, and what their crime
was. The witnesses proved to have no material information, and they never
testified. The FBI issued an apology to them following their release.[165]

Anwar al-Mirabi

Federal authorities arrested Anwar al-Mirabi on September
13, 2001 in his Arlington, Texas apartment complex after his neighbors
called the FBI to report that he seemed "suspicious."[166]
The government first held al-Mirabi for overstaying his visa.[167] On
November 13, 2001, it arrested him on a material witness warrant.Neither al-Mirabi nor his lawyer, Gerald Kleinschmidt, was permitted to
see the affidavit supporting the warrant.

The U.S. District Court for the Northern District of Dallas
initially denied the government's request to seal the proceedings and records.
The judge put the case on the docket and held that the government could not
continue to detain al-Mirabi, because he was not a flight risk.[168]In what may have been an effort to avoid
complying with the court's order, the Justice Department moved the proceedings,
the records, and al-Mirabi to Chicago, outside
the jurisdiction of the Dallas
court. Although al-Mirabi remained on the public docket in Texas, all the records from Texas
were transferred to Chicago.
But there is no trace of al-Mirabi in the federal courts in the northern
district of Illinois-no records, no appearance in any dockets, no notice of any
public hearings.[169] Gerald
Kleinschmidt told a newspaper reporter that al-Mirabi's material witness
records were "all closed to the public, closed to the press, closed to his
family. I guess these people have no rights at all."[170]

The Department of Justice refused to give Kleinschmidt any
information about why it believed al-Mirabi had material information to a
criminal proceeding. "Nobody can tell me, and I'm supposed to represent him I
had no idea what crime he was supposed to testify for, or if there was even a
grand jury investigation when he was arrested."[171]
The government held al-Mirabi for six months without having him testify.
Kleinschmidt, who had worked for seven years as a federal prosecutor, told
HRW/ACLU:

I've never seen a case like this. It's the emotional
issue of terrorism-if they were somehow involved in hatching the plan, the
government has to have some information to show the judge by [probable cause]
that they participated in it. There is no longer a line in the court between
being involved in a conspiracy or being a witness.[172]

After being jailed nine months, al-Mirabi applied for and
was granted voluntary departure and returned to Saudi Arabia with his wife and
children. He was never charged with a crime.[173]

Nabil al-Marabh

The U.S. Attorney's Office for the Northern District of
Illinois also prohibited Nabil al-Marabh and his attorney, John Meyer, from
viewing any records pertaining to the arrest of al-Marabh as a material witness
except for the basic subpoena sent to al-Marabh after his arrest. The
government filed every record pertaining to al-Marabh's detention ex parte and under seal. Knowing only
that al-Marabh was a material witness, Meyer filed four motions on behalf of
al-Marabh, including a motion to unseal the affidavit supporting the arrest
warrant so al-Marabh could challenge it.[174]
After months of continuances, the government released al-Marabh without ever
having him testify before a grand jury.

As Meyer told HRW/ACLU:

I never got a copy of the affidavit. The judge refused
to unseal it and disclose it. I didn't get a copy of any of the documents that
supported his arrest other than the warrant.

[T]he government filed all their papers under seal. I was
operating totally blindly in the case as far as the representation was
concerned. There was the issue of the basis of the warrant and why he couldn't
be taken in front of a grand jury [by the government]. Because it was under
seal, even now I can't truly know why he was detained. I don't know and I never
will.[175]

Restricted Access

More than thirty lawyers for post-September 11 material
witnesses told HRW/ACLU that they were only permitted to view the warrant for
arrest and supporting affidavit in the courtroom. The procedure has varied from
courtroom to courtroom. Some lawyers have been permitted to take notes, while
others have not. Some lawyers have only been able to view the documents for a
short period of time in the presence of the government attorneys and sometimes
the judge. Others have been able to bring the documents with them into a
private room to review with their clients. Almost all lawyers have been denied
access to evidence that the government used to support the arrest beyond what
was included in the affidavit. Specifically:

Public
defender George Taseff, who was appointed to represent Ali Saleh Kalah
al-Marri when he was arrested as a material witness in Illinois, told HRW/ACLU:

I was only permitted to look at the warrant and
affidavit briefly-about 10 minutes. I requested a copy but the judge denied my
request on national security grounds. I was not given a copy and was only
allowed to view it in the court room with the judge and prosecutors present. I
looked at it with al-Marri, who was also seeing it for the first time. I could
take notes. I scribbled notes furiously.[176]

Fred
Sinclair, who represented material witnesses Salman al-Mohammedi and
Mohamed al-Qudhaieen in Virginia
was also restricted to viewing the evidence supporting his clients'
detention in court:

I was not allowed to take a copy of the affidavit. I
could only see it in court and I had to write it out. Everything was secret-the
warrant was filed under seal. The courtroom was closed. It didn't matter
whether they had agreed to cooperate.[177]

Susan
Otto, representing material witness Mujahid Menepta in Oklahoma, only was able to view the
affidavit briefly in court in the presence of the government and the
judge. "I only was able to see the warrant and affidavit in open court. A
number of FBI and cops were sitting at the table with the government."
Menepta was permitted to view the affidavit with Otto while she was in
court but was not given his own copy.[178]

Denial of Right to
Counsel

Everyone has the right to an attorney when subjected to "custodial"
interrogation, i.e., when he or she is not free to leave, or when government
agents seek to question him about suspected criminal conduct.[179] Material
witnesses are guaranteed the right to counsel at their court appearance by
statute and by the Fifth Amendment right to due process.[180]
If a material witness appears in court without counsel, the presiding judicial
officer is required to inform the witness that he or she has the right to
counsel. If a witness cannot afford an attorney, he or she has the right to
court-appointed counsel.

In the material witness context: "Counsel is required so
that the material witness may know precisely what is happening, so that he is
aware of the prospect of incarceration, and so that he is treated fairly by the
prosecution."[181] Despite
these clear requirements, federal authorities have sometimes failed to inform
material witnesses they were interrogating about their right to counsel.
Moreover, even when witnesses have requested counsel, government agents have
sometimes delayed for days in providing counsel, or they have discouraged
witnesses from obtaining counsel, suggesting that the presence of counsel would
simply delay the witnesses' release.

Federal agents have also refused to allow a number of
witnesses to call lawyers or their family after their arrest. Some witnesses
have reported being held for days or weeks before they were permitted to
contact anyone. Mujahid Menepta, detained as a material witness in October
2001, described his frustrations to HRW/ACLU:

[When they arrested me] they didn't tell me I had a
right to a lawyer. They didn't allow a phone call. I asked repeatedly and was
denied. There were two agents who interviewed me. I was still in handcuffs
while being questioned. I asked again why I was being arrested. They said there
were no charges-their only response was that you're just under arrest. Then
they took me to county jail. They still refused to allow me to make a phone
call. The next day I got no phone call. I finally got angry; I kept wondering
where I am and what country I am in. This isn't the United States. Where is my phone
call?[182]

Lawyers also have had a difficult time locating their
clients. Patrick Joyce, lawyer for
material witness Omar Bakarbashat, was told by the FBI that Bakarbashat was
being held in the MetropolitanCorrectionalCenter
in Manhattan.
According to Joyce:

I was not able to gain access to my client for days. I
was first told he was at MCC in the Special Housing Unit. I waited six to seven
hours at MCC and never got to see Omar. Then I was told he was moved to MDC Brooklyn.[183]

The friends and family of Hussein al Attas hired a lawyer to
represent al Attas after he was arrested as a material witness and visa
violator in September 2001. The lawyer, however, had no success in locating
him:

I couldn't track him down. He was picked up on
September 11-they got to him pretty fast. It was very confusing when I
contacted the INS. They asked whether I had a G-28 [an immigration form
designating an attorney]. It was like a dog chasing its own tail at that
time-how could he have signed a G-28 in prison?I called county jails, the FBI, the INS. No one knew where he was.[184]

Failure to Compensate Material Witnesses

The Supreme Court requires the government to compensate
material witnesses who are incarcerated without bail. The law guarantees them
$40 per day.[185] However,
none of the witnesses we interviewed were informed of their right to
compensation or received any compensation for the days they spent in jail. In
fact, many never received compensation for their travel home from far-away
jails, or the wages they lost while they were detained.

VII.Abusive
Interrogations

International human rights law[186]and U.S. constitutional guarantees[187] protect
persons against coercive interrogations. Within these limitations, law
enforcement officials can use a wide variety of questioning methods. Our
research suggests thatalmost all
material witnesses have experienced aggressive interrogations more commonly
faced by criminal suspects. Even where the interrogation methods themselves
have not violated human rights and constitutional standards, the absence of
legal safeguards normally available to criminal suspects has placed the
material witnesses in situations equivalent to unlawful coercion.

In many cases, the trauma of forceful, prolonged questioning
has been heightened by the absence of counsel and the witnesses' lack of
information as to why they were arrested or what they were accused of doing.
The government's willingness to badger and grill the witnesses has reflected
its view they were not mere witnesses, but men with suspicious ties to alleged
terrorists, maybe conspirators or terrorists themselves.

In one case, the interrogation was so fierce and threatening
it led to a false confession. As described above, the government arrested
Abdallah Higazy as a witness in December 2001after agents were informed that hotel staff had found an
air-to-land transceiver (which turned out to have been planted in his room by a
security guard) in the hotel room where he was staying during the time of the
September 11 attacks, near the World Trade Center. The government alleged that
he was connected to the September 11 attacks and could have been communicating
with the hijackers. Upon his arrest, and later in court, Higazy denied the
radio was his or that he was involved in the attacks. Higazy told HRW/ACLU: "It
was horrible, horrible. I always have the feeling of being accused of something
I didn't do. I was crying each and every day five to seven times."[188]

In court proceedings, the government was, according to his
lawyer, "hellbent" to prove that the transceiver belonged to Higazy.[189] Higazy
immediately insisted on taking a polygraph because "I wanted to show I was
telling the truth."[190] His
lawyer, Robert Dunn, cautioned him not to take the polygraph, but Higazy, who
had by then spent days in solitary confinement, desperately wanted to prove his
innocence and get out of jail.[191]

On December 27, 2001, federal agents took Higazy to an
office in Manhattan
purportedly for his polygraph exam. FBI agents would not let Dunn in the
polygraph room as a matter of routine procedure, but they allowed him to sit
outside. The polygraph exam lasted for a few minutes but then turned into a
full-blown interrogation that lasted more than four hours without a break.[192] Before
the test, FBI agent Michael Templeton, who was conducting the polygraph, told
Higazy: "We will make the Egyptian authorities give your family hell if you
don't cooperate." During the polygraph, Agent Templeton asked Higazy about his
knowledge of the September 11 attacks. After each of Higazy's denials, the
agent told Higazy: "Tell me the truth."
When the agent started telling him about what the radio device could do and how
it was connected to the attacks, Higazy became nervous and almost fainted. He
asked to stop the polygraph test and take the cables off him. The agent did so
and told him, "This never happened to anyone who said the truth."[193]

Higazy told HRW/ACLU that at this point he thought he "was
in trouble" and
"had lost the only chance to prove I was innocent." He said he insisted, "It's
not my device, I don't know who put it there." He said Agent Templeton told
him, "We can show ties between you and September 11. You are a terrorist."[194] Higazy
said the agent also again threatened his family: "He said it like this: 'If you
do not cooperate, the FBI will make your brother upstate live [under constant]
scrutiny. And we'll make sure Egyptian security gives your family hell.' That's
exactly how he said it."[195]

During the interrogation, Higazy became so nervous that he
started to hyperventilate, causing the agent to seek medical attention. When
Agent Templeton came out of the room to get an agent trained as an Emergency
Medical Technician, he did not tell Dunn what transpired. After four hours,
Higazy confessed to owning the transceiver: "All I wanted to do is to keep away
from September 11 and to keep my family away from them." After obtaining the
confession, Agent Templeton then came out and told Dunn that Higazy had
confessed. His lawyer, who was shocked at this development, recounted:

Apparently Higazy was so stressed out by the questions
he couldn't breathe He had his head between his legs. After four hours, it
finally finished. The agent came out and said we don't have a polygraph, but we
have a confession and he wants you in. I asked him what happened. He was not
coherent, he couldn't even hear me. He was ashen and his eyes were bugged out.
He kept saying he couldn't remember what he said during the exam, but I know
nothing about the radio. He said that they threatened his family. The agent
told him that he's a terrorist, "I believe that you are a terrorist."[196]

The government subsequently charged Higazy with perjury for
his earlier denials of owning the transceiver.

In January 2002, another hotel guest went to the hotel to
claim his belongings and reported his radio-air transceiver stolen. After the
guest claimed as his own the transceiver attributed to Higazy, the government
dismissed the material witness warrant and criminal charges against Higazy.
Concerned about how the government secured a false confession from Higazy, a
federal court has ordered an investigation into the Justice Department's
conduct in his case.

Other material witnesses reported that FBI agents threatened
them with extended jail time for unnamed criminal charges. Agents, for example,
told Mohdar Abdullah, Osama Awadallah, and Mujahid Menepta that each would be
locked up for a long time. Abdullah described his first FBI interrogation after
his arrest: "[The agent] told me, 'You're going to be in jail for about five
years. You're going to New York
and will be in jail for five years.' I was scared and angry. What the hell did
I do?"[197] Threats
of harsh criminal charges and lengthy prison sentences were consistent with the
government's belief that many of the witnesses were in fact suspects.

In another case, various federal officials threatened Osama
Awadallah after his arrest as a material witness in the September 11
investigation. The district court reviewing his case described the situation:

After Agent Falcon finished administering the
polygraph, he encouraged Awadallah to tell the truth
about his supposed connection to the September 11th attacks by threatening to
send him to prison for five years for lying. Agents Teixeira and Godshall then
accused him of being one of the September 11th terrorists and told him to sit
down and not move. The agents threatened to fly him to New York and detain him for one year in
order to find out more about him.[198]

VIII.Secret
Proceedings

Everything secret
degenerates, even the administration of justice; nothing is safe that does not
show it can bear discussion and publicity.

While grand jury
secrecy is mandated by law . . . the determination to jail a person pending his
appearance before a grand jury is presumptively public, for no free
society can long tolerate secret arrests.

-The Honorable Jed Rakoff, United States District Judge for
the Southern District of New York, August 5, 2002[200]

The Justice
Department has sought, and usually succeeded in securing, court orders sealing
all records and closing the courtroom doors in virtually all post-September 11
material witness proceedings. The courtrooms and documents have been inaccessible
to families of the witnesses, the media, the general public, and even
frequently the witnesses themselves. Of the seventy witnesses we have
identified, there are no judicial arrest records available for sixty-two, and
records in three of the remaining cases have been unsealed only because of
government misconduct. The other five open records were available because the
witness was held for a trial or the district court issued partially redacted or
full opinions on the material witness proceedings. Material witness proceedings
in post-September 11 counterterrorism investigations have rarely even appeared
on the public docket. There were and continue to be no public records of most
material witness arrests, even in the form of "John Doe" records. The Justice
Department has rebuffed Congress' repeated requests for information about
material witness arrests, refusing to disclose the names, numbers, and details
of these arrests.[201]

Such secrecy is astonishing. It is inconsistent with
longstanding principles of criminal justice and government accountability as
well as withUnited Statescriminal
justice history. Recognizing that public scrutiny is a crucial protection
against government abuse, international human rights[202]
and U.S.
constitutional law call for public hearings when an individual's freedom is
being determined by a court or tribunal.[203]
Public hearings protect the rights of detainees and guard them against abusive
or arbitrary proceedings. They also serve the public's right to know what its
government is up to and its interest in restraining possible abuses of
government or executive power.[204]

Yet since September 11, the Justice Department has proceeded
against material witnesses and others caught up in the investigation behind
closed courtroom doors. As Human Rights Watch documented in "Presumption of
Guilt," and the ACLU set forth in a brief to the Supreme Court, post-September
11, the government arrested more than one thousand Muslim, Arab, and South
Asian non-citizens of "special interest" in secret and closed the immigration
proceedings against them, arguing that national security required the need for
secrecy.[205] In the
case of the material witnesses, the Justice Department has claimed that
national security as well as grand jury rules required secrecy.

As then Attorney General John Ashcroft explained:

There are other individuals who are currently being
detained on material-witness warrants. Those proceedings are being conducted
under seal as related to grand juries and, therefore, the department cannot
provide the number or identity of those individuals.

The department is also unable to provide any
information about affidavits, motions, or other papers filed in grand jury
proceedings.[206]

Justice Department officials buttressed their grand jury
argument for secrecy with claims that secrecy was also required to protect
national security. In refusing to disclose the details of material witness
arrests to Congress, the Justice Department has reasoned that "disclosing such
specific information would be detrimental to the war on terror and the
investigation of the September 11 attacks."[207]

The insistence on total secrecy when a witness has been
arrested in connection with a grand jury proceeding is a major departure from
the federal government's past practice. For example, the government did not
close the detention hearing for Terry Lynn Nichols, who was arrested as a
material witness in connection with the grand jury investigation of the 1996 Oklahoma City bombing. In
fact, the United States Attorney read the material witness warrant in open
court.[208] In
addition, the material witness arrest of Nichols, as well as of Abraham
Abdallah Ahmed, who was mistakenly arrested in connection with the Oklahoma City bombing, was
publicly docketed and discussed at length in court opinions.[209]

It is not clear why the courts have tended to give such
short shrift to the principle of public proceedings in the post-September 11
material witness cases. Grand jury jurisprudence does not support the argument
that all material witness records be sealed. Grand jury rules only require
secrecy for material witness records that pertain to "matter[s] occurring
before a grand jury."[210] Courts
have traditionally interpreted this rule narrowly to cover only documentsthat reveal "the essence of what took
place in the grand jury room."[211] Much of
the information contained in the government's applications to arrest material
witnesses has had nothing to do with the grand jury room because the witness
had not yet testified and, indeed, in a number of cases a grand jury had not
yet even been convened when the witness was arrested. In addition, records and
evidence concerning a witness's potential flight risk are not necessarily
relevant to "matters occurring" before a grand jury. Moreover, courts are
required to balance arguments for secrecy against the right to a presumptively
public detention hearing.[212]

Nonetheless, most courts have acquiesced to the government's
insistence that all records and information pertaining to the material witness
arrests be kept under seal. Courts have repeatedly rebuffed news organizations'
attempts to confirm whether witnesses were jailed, much less allow them to
cover federal court proceedings that are usually open.[213]
As one reporter who attempted to cover the detention of U.S. citizen James Ujaama
commented:

It just made it extremely frustrating, really,
impossible to write anything intelligent about what was happening to this
[material witness] and why. To be in a situation where people who are holding a
citizen in custody cannot even acknowledge that they are holding that person is
frankly scary. I've been a reporter for twenty-two years, and I've never seen
anything like that.[214]

One case, known only as "MKB," went all the way up to the
Supreme Court without a docket number, public records, or even a legal opinion
made public.[215] The
lower court decisions were under seal. The Supreme Court refused to hear the
case, in a one-line order denying the petition for certiorari.[216]

Some courts, however, have rejected the government's
position. The U.S. District Court in Oregon closed the detention hearing of
material witness Maher Mofeid Hawash but issued a redacted decision resolving
Hawash's challenges to his detention because "the specific, sealed grand jury
investigation to which Hawash's testimony relates will not be hindered by
disclosing his identity, his arrest as a material witness or his detention
status."[217] The
court further observed that "[t]o withhold that information could create [a]
public perception that an unindicted member of the community has been arrested
and secretly imprisoned by the government."[218]In addition, the court was careful to ensure key aspects of its decision
to detain Hawash were public, finding these facts unrelated to grand jury
matters.[219]

In considering whether to release the material witness
records of Abdallah Higazy, Judge Rakoff of the Southern District of New York
held that when the principles of protecting grand jury secrecy collide with the
principles of public criminal proceedings, courts should weigh in favor of
disclosing material witness records because "no free society can long tolerate
secret arrests."[220]
According to the court, given the importance of the "public's right to know and
assess why someone is being jailed sealing of matters relating to the arrest
and detention must be limited to keeping secret only what is strictly necessary
to prevent disclosure of what is occurring before the grand jury itself."[221]

Randy Hamud, who represented material witnesses Osama
Awadallah, Mohdar Abdullah, and Yazeed al-Salmi in their material witness
hearings in the Southern District of New York, believes the court worked under
different rules in the closed proceedings.

Things go on behind those doors that would never happen
in open court.

The government didn't show me the warrant or evidence.
It's crazy what happens behind closed doors. The judge threw the local counsel
out of the courtroom-Abdeen Jabaraul Jabarah. It's in the transcript. It was
troublesome because I was appearing from out of state and Jabarah was the
in-state counsel.

You do not get justice behind closed doors. A judge
would never do that in a hearing. I was in a twilight zone.

I pointed out clearly how Awadallah was being beaten up
and that there were bruises on his body. I told the judge he was beaten and the
judge just said, "He looked fine to me."[222]

In arguing that U.S. citizen Mujahid Menepta needed
to be detained as a material witness, federal prosecutors contended there was
national security evidence that it could not disclose. The attorney for
Menepta, Susan Otto, found herself unable to counter this argument:

It's hard to argue about a national security argument.
Anytime I ask what the basis was it would be a canned national security
argument. I would ask what's the justification? The government responds:
"National security." I would say "what does that mean?" The government would
say: "I can't tell you."[223]

IX.Every Witness a Flight
Risk

In deciding whether to detain a material witness, there are
at least two points at which a court must assess the likelihood that a person
whose testimony is sought for a criminal proceeding might not appear to
testify. First, in determining whether to issue an arrest warrant the court
must decide whether a witness's appearance can be secured by a subpoena.[224] If the
court issues the warrant, at the initial hearing following arrest, the court
must assess whether the witness poses a risk of flight and determine whether
there are any conditions of release that would reasonably assure his appearance
to testify.

Incarceration is not the only option; indeed, such complete
deprivation of liberty is the least preferred option. There are numerous
alternatives, including requiring personal recognizance or bail, reporting
requirements, and travel restrictions.[225]
The material witness law also includes a preference that a witness be deposed in lieu of confinement.

To protect an individual's liberty interests, international
and U.S.
law establish a presumption against incarceration.[226]
Before September 11, courts generally placed a high burden on the government to
prove that material witnesses would not comply with a subpoena. They generally
required the government to make a strong case that a witness should be
arrested,[227] because
"the arrest and detention of a potential witness is just as much an invasion of
the person's security as if she had been arrested on a criminal charge."[228] The
courts frowned on arrests of witnesses unless they had engaged in specific
conduct indicating they would not testify. When the government was able to
secure an arrest warrant, detention was still far from assured, as the
government had the burden of establishing that no conditions of release would
reasonably assure the witness's appearance.[229]

In the post-September 11 world, however, the standards that
the government has had to meet to arrest and detain witnesses connected to
terrorism investigation have been eviscerated. In every material witness case
we reviewed, the court has accepted the government's assertion that it could
not obtain the testimony of the witnesses through a subpoena.

The Justice Department has secured the arrest and
incarceration of individuals with strong family and community ties in the
United States, gainful employment, U.S. military service, and, in over a
quarter of the cases, U.S. citizenship. Further, most material witnesses, who
have been arrested for the asserted purpose of being brought to testify in
counter-terrorism proceedings, had previously cooperated voluntarily with the
FBI by providing interviews, submitting to polygraph examinations, and
consenting to have their computers and houses searched.

The Justice Department has typically argued that the risk of
flight was established by a combination of the witness's religion, the presence
of family overseas (regardless of whether he also had family in the United
States), and the seriousness of the crime to which he was allegedly connected.
With respect to the last factor, the government has typically intimated or
stated outright that the source of the witness's knowledge was actual
involvement in the criminal matter under investigation. Then, the government
has argued that the witness was a flight risk precisely because he in fact was
a suspect who, according to the government, would run from the prosecution.

The trump card, however, has been the claim of national
security. Lawyers for many of the material witnesses said that when the
government has asserted that national security required incarceration, the
courts have been unwilling to probe further and instead ordered incarceration.

The case of United
States v. Awadallah reflects the post-September 11 willingness to subject
witnesses to incarceration.[230] In that
case, the United
States Court of Appeals for the Second Circuit held that material
witness Osama Awadallah was a flight risk despite the fact that he had
cooperated with the government, had strong family ties in the United States, and had no record of
any criminal wrongdoing. Over a vigorous dissent by Judge Straub, the court
ruled there was probable cause that Awadallah was a flight risk because he did
not affirmatively step forward to
inform the FBI he had known one of the hijackers.[231]

On September 21, 2001, the FBI arrested Awadallah, a
permanent resident and Jordanian national attending GrossmanCollege in San Diego, alleging that he had information
relevant to the September 11 investigation. The FBI located Awadallah after the
government linked him to a telephone number found in a car abandoned by one of
the suspected hijackers. As the government quickly determined, Awadallah had
not used that telephone number for seventeen months.

The day before his arrest, eight government agents visited
Awadallah at his house and requested that he join them for questioning.
According to the government, Awadallah "was very, very cooperative," consented
to eight hours of voluntarily questioning, and allowed the government to search
his car.[232] The next
day, while Awadallah was voluntarily at FBI headquarters, the FBI applied for a
material witness warrant to arrest him. The government argued that "if
[Awadallah] is not detained, there is no assurance that he would appear in the
grand jury as directed," because he "maintain[s] substantial family ties in Jordan
and elsewhere overseas," and because he had beena co-worker with two of the hijackers.

Judge Shira Scheindlin of the U.S. District Court for the
Southern District of New York reviewed Awadallah's material witness warrant in
a collateral proceeding and ruled it was invalid. She found, among other
things, that the government failed to establish that there was probable cause
to believe that Awadallah would not comply with a subpoena to testify.The court pointed to Awadallah's
family ties (his U.S.
citizen father and three brothers in San Diego,
one of whom is also U.S.
citizen), his previous cooperation with the FBI, and the absence of any prior
conduct that would subject him to prosecution.

The Second Circuit reversed Judge Scheindlin's decision and
held that the material witness warrant was valid. The court ruled there was
probable cause that Awadallah was a flight risk because "in the wake of a mass
atrocity and in the midst of an investigation that galvanized the nation,
Awadallah did not step forward to share information he had about one or more of
the hijackers, whose names and faces had been widely publicized across the
country."[233] The
court made no mention of his voluntary interviews with the FBI, government
admissions that he was "cooperative," his legal immigration status, or his
family ties.

Detaining Witnesses Who Cooperate with the Government

Before their arrest, more than two-thirds of the material
witnesses arrested in connection with post-September 11 counterterrorism
investigations had either initiated contact with the FBI or, when asked, had
readily agreed to be interviewed. Awadallah is one of numerous witnesses who,
prior to their arrests, had agreed to multiple interviews that lasted hours and
consented to the government's requests to search their property. They have been
taken by surprise by their arrests, because the officers who arrested them had
been friendly and thankful for their cooperation just hours earlier. Although
most of the documents remain under seal, the accounts of witnesses and their
lawyers suggest that the government has largely been relying on the magnitude
of the crimes to which the witnesses were allegedly connected in order to
detain them.

Eyad Mustafa Alrababah

Eyad Mustafa Alrababah went to the FBI office in Bridgeport, Connecticut
on September 29, 2001, to inform authorities that he had recognized four of the
alleged hijackers whose pictures were shown on television. He told the FBI
agents that in March 2001 he had met the men at his Connecticut
mosque, hosted them at his home, and in June 2001, drove them from Virginia to Connecticut.
He had not seen them since then and had no prior knowledge of the attacks.
After two FBI agents questioned Alrababah at an FBI office, they arrested him
as a material witness later the same day,
shackling him and taking him to the HartfordCorrectionalCenter,
where he was held for about twenty days. At the detention facility, Alrababah
was placed in isolation and was strip - and cavity-searched at least once a
week. Alrababah was not brought before a judge until a month after his arrest.[234] He was
never called to testify in any criminal proceeding.

Mujahid Menepta

Mujahid Menepta, who attended the same mosque as Zaccarias
Moussaoui in Norman, Oklahoma, voluntarily met and talked with
the government three times in September and October 2001 before the government
arrested him as a material witness on October 10, 2001. Menepta, a
sixty-year-old U.S. citizen
and convert to Islam with two U.S.
citizen sons, had stepped forward to talk to the press that had gathered
outside his mosque after September 11 because he wanted to protect the younger
Muslims, many of whom were immigrants, from the suspicion that was being cast
upon them in the wake of September 11. According to Menepta:

After the press talk, the FBI approached me. They told
me: "We'd like to ask you a couple of questions. Will you meet us?" I told them
sure.

I met them outside the subway with [my son]. They told
me: "It is in your best interest that you cooperate." I said I'd be happy to.
They ended the interview by telling me: "We will get back to you with questions
and thank you for cooperating."

The agents were really friendly. I went voluntarily.
They asked whether I had any travel plans. I told them I don't have any now. I
was working. They asked to meet again.[235]

Menepta met with the agents for three more interviews before
more than twenty agents arrested him at his workplace.[236]
In court, the Justice Department argued that Menepta was not likely to respond
to a subpoena because the government had already arrested him and executed a
search warrant on his premises. Then, U.S. attorneys argued that because
their actions may have upset Menepta, he would not appear in court. His lawyer,
Susan Otto, characterized the government's arguments as an illogical "round robin
bootstrap."[237] The
federal prosecutors further argued that there was additional national security
evidence that it could not disclose that showed Menepta was a flight risk.

Otto said the court, somewhat reluctantly, deferred to the
government's flight risk assessment given the national security argument. The
government held Menepta as a material witness for five weeks. He was later
charged with unauthorized possession of firearms found during the search of his
home.

Faisal al Salmi

The Justice Department acknowledged how cooperative Faisal
al Salmi, a Saudi national and legal immigrant, was before he was arrested as a
material witness. According to the FBI, when agents approached al Salmi on
September 18, 2001, he voluntarily invited the agents into his home. He later
went to the FBI offices and agreed to be interviewed. He stayed with the FBI
agents for eight hours. In addition, al Salmi agreed to be polygraphed without
the presence of a lawyer. Special Agent for the FBI, George Piro, testified in
court to al Salmi's helpful demeanor:

Q:And
as you approached the apartment, how is it that you had access to the
apartment?

A:Agent
Williams and I knocked on the front door.

Q:And were
you invited in or not?

A:Yes we
were.

Q:Did you
introduce yourself?

A:Yes I
did.

Q:What
else did you do after you introduced yourself?

A:I
showed al Salmi my credentials identifying myself as an agent of the FBI, as
did Special Agent Ken Williams.

Q:And
did you in any way inform al Salmi as to the purpose of your visit?

A:Yes, we
did.

Q:What did
you tell him?

A:We
told him we were there to talk to him in regards to his enrollment at Sawyer
Aviation and to the September 11th attacks

Q:When
you entered the apartment and identified the purpose for your visit, how would
you describe al Salmi's demeanor when you notified him you were with the FBI?

A:He was
calm and friendly.

Q:Did he
appear nervous?

A:No, not
at all.

Q: And
the polygraph interview continued until almost 2 o'clock that morning,
following morning?

A: I
believe the interview went till approximately 1:30, and at that point I made
arrangements to take al Salmi home, and I think we left around 2:00 and got him
home by 2:30.

Q:Did
you discuss with al Salmi the possibility of speaking with him again?

Two days later, on September 20, 2001, federal agents
arrested al Salmi as a material witness.[239]
He was dismissed as a witness on October 10, 2001 after being held in solitary
confinement in New York and Arizona prisons.

Mohammad Warsame

Material witness Mohammad Warsame met willingly with the FBI
at its request prior to his arrest. In its own court filings, the Justice
Department confirmed that:

On or about December 8, 2003, FBI agents in Minneapolis, Minnesota,
approached an individual whom they had previously identified as Mohammed
Abdullah Warsame. After being approached, Warsame voluntarily agreed to speak
with the FBI agents, and was subsequently interviewed by them.[240]

The FBI nonetheless maintained at his detention hearing that
he was a flight risk. In court, the prosecution gave no weight to the fact that
Warsame was a Canadian citizen and a U.S.
legal permanent resident and had lived with his wife and small child in Minneapolis, Minnesota
for several years. According to the lawyer who represented Warsame:

There was absolutely no indication he would not appear
in front of a grand jury voluntarily. The government has admitted that he
talked with the government voluntarily. A subpoena would have been good enough.
Never to this day do I know why the government considered him a flight risk.

I worked on a number of material witness cases before.
In the other cases, the government always presented clear evidence that the
witness would flee-that he missed a court appearance or literally said to the
government, "I'm not coming." Never before had I seen a material witness thrown
in jail like this with no criminal charge and with no real risk of flight.[241]

Ignoring Material Witnesses' Strong Community and Family Ties to
the United
States

The Justice Department has sought material witness warrants
for people who have strong ties in the United States,
jailing witnesses who were the primary caretakers for their wives, children,
and parents in the United States
and who had deep roots in their communities. Prior to September 11, and in the
context of non-terrorist investigations, such factors would weigh heavily
against the contention that a witness was a flight risk. Almost all the
material witnesses held in post-September 11 counterterrorism investigations
had valid visas, and one-quarter of them were U.S. citizens; these factors
historically would also have weighed against the suggestion of flight risk.
Lawyers for material witnesses consistently said courts overlooked these
factors because of national security arguments.

In December 2001, the government detained U.S. citizens Abdalmuhssin
el-Yacoubi, Mohammad Hassan el-Yacoubi, and Mohammed Osman Idris as material
witnesses. All three were born and raised in the United
States, lived in Virginia,
and had their entire immediate families there. The Justice Department arrested Virginia residents Mohammad el-Yacoubi and Idris at the airport
en route to Israel.
The arrest followed the discovery by airport authorities of a note in Arabic in
Mohammad el-Yacoubi's luggage that led federal officials to believe that the
two may have been planning a suicide mission.[242]
The government then arrested Mohammad el-Yacoubi's brother, Abdalmuhssin
el-Yacoubi, a student at the University
of Virginia, who had
written the note. After six weeks in detention, the el-Yacoubi brothers were
released without charges and without ever having been brought before a grand
jury. Idris was also held as a material witness for six weeks. The government
subsequently charged Idris with making false statements on a passport
application.

According to the lawyer for Idris, the Justice Department
never offered any specific reasons to believe either of the brothers or Idris
would be a flight risk: "The government argues his appearance can't be assured:
Why? He's a US
citizen! He had no criminal history. They said it was in the interest of
national security."[243] All
documents and transcripts in the case are sealed.

As a result of the detention and terrorism allegations,
students at the University
of Virginia were
suspicious and hostile to el-Yacoubi when he returned to school.He tried to explain how the government
mischaracterized and mistranslated his letter,[244]
but students did not relent in their suspicions of him.[245]
Shortly after his release from detention, he left the school.[246]

Magnitude of the Crime

As discussed above, the case of Brandon Mayfield is a stark
example of the use of the material witness statute to incarcerate criminal
suspects. Given its suspicions about Mayfield, the government ignored factors
that should have militated against his arrest and detention.

The government's argument that Brandon Mayfield would not
comply with a subpoena and was a flight risk confounded his attorneys. Mayfield
was a U.S. citizen, married
to a U.S. citizen, and a
father of three U.S.
citizen children. He was an officer of the court and had practiced law in Oregon for almost four
years. Mayfield had served in the U.S. armed forces for several years
and had no criminal record. He had not left the country in almost ten years and
possessed only an expired passport.

In Mayfield's case, the lack of evidence that he had
traveled outside the United
States became the basis for the government's
argument that he was a flight risk. Having asserted that it had positively
matched Mayfield to a fingerprint found in Spain, the government contended
that the absence of a valid passport or record of travel had to mean that
Mayfield possessed false documents (though none had been found in searches of
his home, office, and safe deposit box). As to why Mayfield would flee, the
government baldly pointed to his status as a suspected terrorist:

Since no record of travel or travel documents have been
found in the name of BRANDON BIERI MAYFIELD, it is believed that MAYFIELD may
have traveled under a false or fictitious name, with false or fictitious
documents I believe that based upon the likelihood of false travel documents
in existence, and the serious nature of
the potential charges, MAYFIELD may attempt to flee the country if served
with a subpoena to appear before the federal grand jury. Affiant believes that
if a material witness arrest warrant is not issued at this time, MAYFIELD's
testimony will probably be lost to the Grand Jury and will probably not be
available in any subsequent criminal proceeding in the United States.[247]

The court accepted the government's allegations. According
to the transcripts, Mayfield, and his attorneys, the presiding judge also
appeared to rely on the magnitude of the alleged crime to determine that
Mayfield was a flight risk. When Brandon Mayfield challenged his detention in
his first court appearance and assured the judge that he would testify, the
judge refused his requests for release stating, "We are looking at [a] very
serious situation. I will have to hold you."[248]
At the conclusion of the hearing, the court elaborated:

My finding is, because of the gravity of the matter,
there is no way that I can ensure the appearance, in spite of good words, and
the situation of this material witness at this time, if that is his fingerprint
with the 200-plus dead people and 1,500 injured and potential call on the
witness to Spain, I'm not going to release this material witness until the
testimony is complete.[249]

Former U.S. Attorney Mary Jo White told HRW/ACLU that the
magnitude of the crime was an important factor to consider in a flight risk
determination: "Part of what makes you a flight risk is that with the magnitude
of the crime you have fear that you will be charged."[250]

The magnitude of the crime may be a valid consideration in
determining the conditions under which a criminal suspect might be released.
But the nature of the crime at issue is an impermissible factor to consider
when considering the detention of a witness.[251] What
remains a mystery is why, given the strong evidence it thought it had against
Mayfield, the government did not arrest him on criminal charges. In most of the
other material witness cases, the government had hardly any evidence to support
its suspicions which may explain why it chose to circumvent the requirement of
probable cause by using the material witness statute. The government could
appropriately have taken the magnitude of the alleged crime into account by
setting bail terms for Mayfield rather than using it as a basis for
incarceration as a material witness.

Failure
to Depose
Witnesses

Consistent with its intent that material witnesses be
incarcerated only as a last resort, Congress included in the material witness
law a prohibition on detention if a deposition would suffice to secure the
witness's testimony. The law provides in relevant part: "No material witness
may be detained because of inability to comply with any condition of release if
the testimony of such witness can adequately be secured by deposition, and if
further detention is not necessary to prevent a failure of justice."[252] Such a
provision, of course, is rendered all but meaningless when the law is used to
hold suspects rather than witnesses. And this is what has happened when the law
has been applied in the terrorism context since September 11.

Congress included the deposition requirement in the material
witness law because "it puts much greater emphasis on release."[253] As one
court stated in a non-post-September 11 material witness case, depositions
provide the "keys to the jailhouse door."[254]

In the post-September 11 counterterrorism context, the
deposition option has not been a key to opening the jailhouse door. The Justice
Department has consistently opposed depositions or stalled in taking them. This
evasion of the basic requirements of the material witness law is further
evidence that the government's primary goal has not been to secure the
witness's testimony, but to ensure the witness remained incarcerated while the
government continued its investigations. When courts threatened to order a
deposition, the government has typically relied again on the sensitive nature
of the case and unspecified national security concerns to persuade the courts
to keep the witness detained.And
when courts have ordered depositions, the government has sometimes evaded the
order (and the attendant obligation to release the witnesses) by transferring
the witnesses from one jurisdiction to another or by criminally charging them,
which it should have done in the first place if it had the requisite evidence.

When Daniel Sears, attorney for material witness James
Ujaama, requested to have his client deposed in Colorado he hit a wall both in court and
with the Justice Department. Sears, a former prosecutor who had represented a
number of material witnesses before September 11, described to HRW/ACLU the
response of the government and court to his request to have his client deposed:

The requirement that a material witness is only
permitted to be detained only when the government can't get his testimony by
deposition was unavailable in this case. The court would barely hear my
argument-it [was] waived on the ground of national security. And when we
offered the government to provide deposition testimony, the government moved
him to Eastern District of Virginia The post September 11 context is
drastically different. Before, the government takes an individual's deposition,
and releases him or her, unless required by trial. The government, in
non-September 11 cases, had no reticence in taking a deposition.[255]

Material witness Ali Ahmed languished in jail for months
while the government refused to take his deposition. His lawyer, Steve Swift,
who had also represented several material witnesses before September 11,
contrasted the government's treatment of Ahmed with his other
non-terrorism-related material witness clients:

Ahmed dragged out more. No one wanted to take his
deposition. There were rumors, thoughts, and suspicions about his involvement
in terrorism. He never got a deposition-it was just dragged out.

But before September 11 the government was quick to let
go of those witnesses. Some of those were released real quick. They would
appear at the courthouse for a deposition within two weeks of their arrest.[256]

Susan Otto, who represented material witness Mujahid
Menepta, also told HRW/ACLU the deposition alternative was not even on the
table. A few days after Menepta was arrested, Otto raised the possibility of a
deposition to the Oklahoma-based federal prosecutors. But the "government made
clear that it was not an option in this case." According to Otto, the U.S. attorneys in New York called the shots and flatly refused
to depose Menepta.[257]

X.Haste, Incompetence,
Prejudice: The Arrest of Witnesses Who Have No Information

The number of men arrested and incarcerated
as material witnesses who had no connection to, much less knowledge about,
terrorists or terrorist activities is significant. Based on government
admissions of mistaken arrests, Congressional inquiries, and our review of
material witness cases, as many as one-third of the witnesses had no relevant
information regarding any criminal activity.[258] In these
cases, the information suggesting that the witness had any information relating
to an investigation was erroneous. The number may be substantially greater, but
cannot be ascertained until more records are made public. Forty-two witnesses
never faced any charges, and only seven faced any terrorism-related charges.

In a significant proportion of cases,
witnesses have had information, but it was far too minimal, tangential, or
circumstantial to provide the basis for arrest and incarceration. There may have
been good reasons for the Justice Department to want to talk to some of these
men, such as those who had prior contacts with hijackers, but absent any
evidence of wrongdoing, there was no good reason for arresting them and forcing
them to languish in jail. If the government had been willing to proceed more
carefully, if it had taken more seriously the liberty interests of the men, few
of the seventy would have been considered genuine material witnesses, and even
fewer would have been deemed flight risks. What has accounted for the appalling
record of arresting utterly innocent people and locking them up for months?

The federal government understandably felt
great urgency after the September 11 attacks, particularly in light of the
limited information the FBI had about al-Qaeda at the time, and this apparently
induced federal investigators and attorneys to lower their professional
standards. Yet months and years after September 11, when federal agents have
assessed how to proceed with Muslim men of Middle Eastern and South Asian
descent who had attracted their notice for one reason or another, they have
rushed to judgment, and failed to acquire and develop solid evidence. In case
after case, federal investigators and attorneys have given undue weight to unverified
tips, made poor inferences from the information they had, and leapt to dubious
conclusions.

One cannot help but ask whether ignorance and
prejudice about Muslims in the United States and men of Middle Eastern or South
Asian descent has helped color the analysis of the government in these cases.
The witnesses' religion and national origin has taken on excessive and
unwarranted significance, as agents have become suspicious of the most
innocuous of activities. Many of the cases suggest the government has paid
scant heed to either the constitutional or the international prohibitions on
discrimination on the basis of religion, national origin, or ethnicity. Whether
it was possessing a box cutter, taking pictures of a bridge, or playing soccer
early in the morning, the most innocent conduct has aroused the government's
suspicions when undertaken by people who fit a certain religious and ethnic
profile.

Innocent people have also became the hapless
victims of the government's zeal because neither the Justice Department nor the
courts have honored the letter and spirit of the material witness rules that
protect everyone's right to freedom. Disregarding the requirement that arrests
and incarceration not be used if there were some other way to secure the testimony
has meant the unnecessary arrests and detentions for scores of men. Denying
witnesses access to information and keeping the proceedings buried in secrecy
has also meant the Justice Department's mistakes have not been rectified as
quickly as they might otherwise have been. Many of the cases already described
in this report suggest the extent of the government's errors. Additional ones
include the following:

Abdullah Tuwalah and Salman al Mohammedi

In 2003, the Department of Justice was
conducting a grand jury investigation into the alleged criminal activity of Ali
Saleh Ali Almari, a Saudi Arabian national who was a student at MarymountCollege.Federal agents suspected Almari of assisting terrorist plots as an
operative, although they only charged him with running a college test-taking
scam-selling test answers to college students.[259]In connection with the grand jury
investigation, the Department of Justice arrested a number of material
witnesses, including two other Saudi Arabian and Muslim students at Marymount,
Abdullah Tuwalah and Salman al-Mohammedi. According to the lawyers for the two
students, the FBI's main argument for arresting the two witnesses was that they
knew Almari through the Muslim society at school. Fred Sinclair, who
represented al-Mohammedi, told HRW/ACLU:

[I]t was guilt by association. He knew
someone who knew someone If anything, my guys may have partied with [Almari]
The government's basis was weak. These people go to school together. Al
Mohammedi was social with him through their Arab groups. If he was not an Arab
friend of al-Mohammedi, I don't think the government would have any suspicion.[260]

Denise Sabagh, who represented Tuwalah, was
similarly dismissive of the government's case:

It was pretty vague-it was more tenuous than
al-Mohammadi. They said that he knew some person that knew some person that may
have known anything. The affidavit also said they found some flight manuals and
magazines with Osama bin Laden's picture. But it was so tenuous. The magazine
was Time or something from the Saudi Embassy and [Tuwalah] had come to the United States
originally to attend flight school.[261]

Neither Tuwalah nor al-Mohammadi was ever
brought before the grand jury, much less ever charged with any crime. After
months of detention, during which they were repeatedly questioned by the FBI,
they were released.[262]

Ahmed
Abou El-Khier

On September 14, 2001, the government
arrested Ahmed Abou El-Khier after a clerk at a motel in College Park, Maryland
called the FBI authorities to report that he looked suspicious.[263]
(After the September 11 attacks, many Middle Eastern and South Asian men have
become the victims of public suspicions based on no more than their
appearance.)[264]Although El-Khier was a paying guest
at the motel,the Justice Department
initially charged him with one count of trespass.[265] The
government subsequently changed the grounds for detention of El-Khier to that
of a material witness on the basis that he had "a relationship with one of the
hijackers."[266] As
El-Khier languished in jail, the government could not find evidence that he had
any connection to the September 11 investigation.[267]
El-Khier never testified before a grand jury. El-Khier believed he was arrested
because "I was Egyptian and Arabic and Muslim-this is the reason they hold me."[268]

Details are scant as to why El-Khier,
twenty-eight, remained under suspicion. His lawyer believes the government had
little more than the initial tip that he was suspicious and a polygraph test
that erroneously suggested that he lied about knowing two of the September 11
hijackers-allegations that never proved to have any basis. There was apparently
no proof other than a shared Egyptian nationality connecting El-Khier to the
hijackers. All documents pertaining to his status as a material witness are
under seal. Law-enforcement authorities declined to comment on the case.

A federal judge in New York dismissed El-Khier's material
witness warrant on October 11, 2001.[269]

Ismael
Selim Elbarasse

Maryland
state police stopped the family car of U.S.
citizen Ismael Selim Elbarasse, his wife, and three children as they were
driving back to their home in Virginia after a
three-day family vacation in Delaware.
The police pulled over the Elbarasse family after they thought they saw Nadia
Elbarasse videotaping the Chesapeake
BayBridge
from the moving car.[270]
Dua'a Elbarasse, twenty, daughter of Ismael Selim Elbarasse, explained that her
mother was simply trying to zoom in on boats in the bay, which the tapes later
confirmed: "We had taped our whole vacation, and we thought the bay looked
really nice off the bridge."[271]
Suspecting that the Elbarasses were filming the BayBridge
as a target,[272] the
state police ordered the family members out of their car and searched them. The
police, joined by the FBI, took the Elbarasses to the stationfor seven hours of questioning.

In doing a computer search on Elbarasse, the
FBI discovered that he had a connection to an ongoing criminal trial of men in Chicago charged with
providing material support to Hamas.[273] That
evening, a federal judge in Illinois issued a
material witness warrant for Elbarasse while he was held in a Maryland jail. Two weeks later, a Maryland federal court
ordered Elbarasse released from jail and held under house arrest after his
family and friends put their houses up as collateral for a bail of one million
dollars.All documents in his case
remain under seal.

Ayub
Ali Khan

On September 12, 2001, the FBI arrested Ayub
Ali Khan and Mohammed Azmath at the Amtrak railroad station in San Antonio, Texas.
The two friends from India
had just lost their old jobs working togetheras managers of a newsstand in New Jersey's
Newark Penn Station and were relocating to Texas for new work. They had begun their
trip to Texas on a plane that was scheduled to
fly from Newark, New Jersey
to San Antonio, Texas on September 11, 2001. Because of the
attacks that day, their plane was grounded in St. Louis, Missouri.
Azmath and Khan completed their journey to San Antonio by train, like many other
passengers. Shortly before the train reached San Antonio, federal agents approached Azmath
and Khan on the train based on a "suspicious tip" from other passengers.[274] The
government arrested Azmath and Khan after they discovered they possessed around
$5000 cash, box-cutters, and "a prayer rug and other religious paraphernalia."[275] In
other words, the FBI detained the two men because they had some money, had an
instrument commonly used by people who work in newsstands among other
occupations, and were Muslim non-citizens.Surely, but for the last attribute, they would never have been detained.

The FBI first held Khan as a visa violator
but later obtained a material witness warrant for his arrest. Both he and
Azmath, who was arrested on an immigration charge, were held in solitary
confinement in the high security Special Housing Unit of MDC Brooklyn for
almost a year.[276]

The government never charged them with any
terrorist-related offenses. Instead, the government eventually charged them
with credit card fraud, based in part on statements Khan and Azmath made
without the presence of counsel. During a court hearing in April 2002, Khan's
attorney argued against his continued detention:

Why is this defendant being held in such
close custody, when there is no terrorism case against him and it has not been
shown in any credible, palpable way that this defendant was involved in an
attempt to hijack an airliner to crash into the WorldTradeCenter?

Yes, he's a Muslim, he's from India.
His family lives in Hyderabad.
The defendant has no criminal record, no pilot training, none of the indicators
that would suggest that the defendant is involved in planning some kind of
heinous act against buildings or airliners, none of that in this case.[277]

Khan's mother took his case to the United
Nations Working Group on Arbitrary Detention, which ruled that the United States
had violated international prohibitions against arbitrary detention by holding
Khan and Azmath without a sufficient basis.[278]

After almost a year in detention, Khan was
convicted of credit card fraud and given time served. At his sentencing
hearing, he contested his arrest:

Your honor, I must say, my arrest was
executed without probable cause based upon entirely bare suspicion and racial
profiling. Single me out, a Muslim, as a terrorist. Your Honor, I am not a
terrorist.[279]

"Evansville Eight"

In early October 2001, FBI law enforcement
officials received a call from La-Tennia Abdelkhalek, an American-born cook at
Rafferty's restaurant in Evansville, Indiana, stating that her husband Fathy,
an Egyptian waiter at the Olive Garden, seemed despondent and had told her he
was "going to crash [into the Sears tower]."[281] The
FBI moved swiftly, set up surveillance, and on October 10, 2001, arrested not
only Fathy, but eight of his friends.[282] The
nine men were former members of the Egyptian national rowing team who had
relocated to Evansville
over the previous ten years for work. Allworked several shiftseach day
in Evansville
restaurants to support their families. Abdelkhalek and seven of his friends
were arrested as material witnesses; one man, Mohammad Youssef, was arrested on
immigration charges.

The FBI apparently found the nine men
suspicious because of their common Egyptian background, their friendship, and
their social and athletic activities. The FBI apparently found significant the
fact that the nine men worked out and played soccer together regularly at 6
a.m., and FBI agents questioned each of the men separately about their morning
soccer games. One of the detained material witnesses explained:

They didn't wait to find out the truth, they just took us. They asked why do we work
out at 6:00 a.m.? I told them, it's to practice. They started blaming us. I
told them we used to play sports in Egypt for twelve, fourteen years.
We work out together. Then they ask me in the interview whether I have been
to Afghanistan;
did I know bin Laden? I said I never have been to Afghanistan. They said I am a
witness and I ask them, material witness for what? They didn't tell me.[283]

Another said:

One of the guys with the FBI, he said so you
go and play soccer in the morning and stuff like this. I said yes we go play.
But you go play early, at six in the morning. I said well that's the only time
that all of us can be together. Because we work first shift second shift and
third shift. So that's the only time we have. Because he asked me why we go in
the morning and work out. I said first we go work out and then we play soccer.
I felt like I had to be very clear about every word I say. So whenever he said
work out, I said you mean soccer, and he said yeah.[284]

In questioning the witnesses, federal agents
asked each of the Evansville
material witnesses about why they used the word "uncle" to refer to Adel
Khalil, the uncle of material witness Tarek Albasti. Khalil, who also arrested
as a material witness, was almost twenty years older than the other men. During
interrogations, the men explained that the word "uncle" in Egypt was commonly used to refer to
older people out of respect. As Khalil told HRW/ACLU:

Then they ask me why do people call you
uncle? I laugh, I say because I have white hair. They say is your name Uncle? I
say, no, Adel. It's like this for forty-five minutes. They don't understand.
Why Uncle? They thought I was the mafia or something.[285]

The FBI had questioned Tarek Albasti a month
before they arrested him as a material witness. Albasti is a U.S. citizen, married to a U.S. citizen, with a young U.S. citizen child. He came under
government suspicion, however, because he had come to the United States from Egypt, was a Muslim, and had taken
flying lessons. A few days after September 11, FBI agents had visited him at
his house to question him about his flying lessons. During that interview, he
explained that his father-in-law, a former U.S. State Department official, had
given him the flying lessons as a gift, and he took lessons only for small
planes, not commercial airliners. The agents were nonetheless suspicious and
interwove their questions about his flying capability with questions about his
knowledge of bin Laden:

[T]hey came in, and asked, "When did you
start flying, why did you start flying?" Then they asked me what I thought of
Osama bin Laden. And I told them I told them I had no idea about Osama bin Laden
except for these last four days. I didn't have much knowledge of Osama bin
Laden and the mujahadeen or Afghanistan.
I had heard about the mujahadeen and Afghanistan but nothing about a
specific person. But after September 11 of course everyone is glued in front of
the TV. And I learned about him because one night there was a TV program about
Osama bin Laden I told them that's what I know of Osama bin Laden.[286]

After holding the men in solitary confinement
for two weeks and questioning them further, the Department of Justice decided
that La-Tennia Abdelkahelk's tip about her husband was baseless. Had the
government investigated the tip or her record before arresting the nine men,
agents would have found that and La-Tennia Abdelkhalek had marriage problems
and that she was known to get very angry at her husband for sending money home
to his children in Egypt. The FBI has since apologized to the nine men for
wrongfully arresting them.

Albader
al-Hazmi

Dr. Albader al-Hazmi, a Saudi national
working as a radiology resident in San
Antonio, Texas, was
held as a material witness for thirteen days. On September 13, 2001, armed
government agents entered his home, where he lived with his wife and small
children. As best as al-Hazmi could tell based on the questions the FBI asked
himand according to government
information leaked to reporters, the Justice Department's principal basis for
arresting him as a witness was that he has a last name similar to that of two
of the hijackers. Federal investigators also found him suspect because he had
obtained an American visa in Jiddah (a visa location used by some of the
hijackers); had wired $10,000 from Saudi Arabia to another Saudi Arabian in
America; had purchased five tickets on Travelocity, the website allegedly used by
the hijackers; and had received phone calls over the past couple of years from
a bin Laden at the Saudi embassy.[287] As
al-Hazmi explained:

[T]he government said I had traveled too much
and that my last name match one of the hijackers names. The government found
that I received a phone call from a guy with last name of bin Laden. I told
them the bin Laden I knew worked under the supervision of the Saudi embassy and
he is not into politics. I contacted this man to ask him to bring books for
our mosque library in San Antonio.[288]

According to press reports, anonymous federal
government sources identified al-Hazmi as a key terrorist suspect who had
provided funds for the September 11 hijackers. Nevertheless, they never brought
him before a grand jury, and he was never charged with any crime or immigration
violation.[289]

Omer
Bakarbashat

The FBI presumed that Omer Bakarbashat had
information relevant to the September 11 investigation because a year before
the September 11 attacks, he had subleased the apartment of two of the
hijackers. Bakarbashat, a Yemeni national, was in the United States on a student visa following his
completion of a computer science degree in Jordan. After seven months in the United States,
his family had a financial set-back and could no longer assist him with his
tuition. Bakarbashat falsified his immigration documents so he could work in
the U.S.
to support himself. He dropped out of school and found work as a computer
technician, because "I didn't want to give up my dream."

After spending nights in his car and with
friends, Bakarbashat eventually found cheap housing he could afford when two
acquaintances from the mosque where he prayed daily said they were looking for
someone to take the last month on their six-month lease for $400-half the rent.
This was his only substantive interaction with the two men, Nawaf al-Hazmi and
Khalid al-Midhar, who a year later hijacked American Airlines flight
seventy-seven, which killed 189 people when it crashed into the Pentagon on
September 11.[290] When
FBI agents visited Bakarbashat on September 15, 2001, he voluntarily explained
his connection to the men, whatever information he knew of them, and disclosed
that he was out of status. Bakarbashat volunteered to be polygraphed about his
knowledge and allowed the government to search his computer and his residence.

Despite his willingness to cooperate, the
government presumed he had more information and told him it would charge him
for financially assisting the two hijackers by subletting their apartment. Although
the federal agents announced he was a suspect, they arrested him as a material
witness and jailed him in solitary confinement in New York for three months, while continuing
to threaten terrorism charges against him. According to his lawyer:

Bakarbashat leased an apartment that [the two
hijackers] once resided in. He took over the rest of the lease from the guys.
He had no social interactions with al-Hazmi and al-Midhar. Initially the
government was going to charge him with providing material support for renting
an apartment from them. Really, he was pretty poor-a student, getting his
degree in computers. He would be living in his car if he didn't rent a cheap
apartment.[291]

Bakarbashat was eventually criminally charged
and deported for doing work while on a student visa.[292]

XI.Consequences of Arrest
for Material Witness Detainees and their Families

I prayed to God not to
hate, but I thought this was a setup and that I would spend my life in prison.
I was depressed. I hated myself, my family, the officers, everyone. I did
nothing, but I thought that if they asked me if I did something that would give
me a death sentence, I was ready to [confess].

For the material witnesses profiled in this report, the
experience of arrest and incarceration has been devastating-in many cases a
nightmare which continues to darken their lives. The misuse of the material
witness law has not just been a violation of abstract rights. Being treated as
potential suspects would be bad enough, but innocent men have found themselves
without the reassuring safeguards and protections afforded to criminal
suspects; they have been hauled off to jail by armed agents for no reason they
could discern and with none provided, held for weeks and months in solitary confinement,
and handcuffed and shackled, as though they were dangerous terrorist suspects.
It is difficult to imagine the fear, confusion, despair, and devastation these
men and their families have experienced in these circumstances. It is not
supposed to be an experience one would ever endure in the United States.

Adding insult to injury, the arrests and detentions have
tainted the reputations of these men and their families in their home
communities. Because the arrests were often public and completed with numerous
gun-wielding agents, often in small towns, rumors spread that the witnesses
were terrorist suspects. In addition, although in court the Justice Department
has insisted on complete secrecy for all records, there have been numerous
government leaks to the press of the arrests, often in highly sensationalist
terms, to suggest the government was triumphing in the war against terror.
Newspaper stories, citing unnamed government sources, have celebrated the
capture of local terrorist suspects.[294]
The stories have created pervasive and lasting suspicions of the witnesses in
their communities, suspicions that did not abate when the material witnesses
were released.

Because almost all the material witnesses were limited to
talking to their lawyers or family members while incarcerated, and lawyers
faced gag orders, the witnesses were often unable to mount efforts to clear
their names until after they were released. Moreover, closed court proceedings
and sealed records have prevented the public, including the press, from being
able to probe the leaked accusations against the witnesses and assess the
strength or weakness of the government's evidence.

The consequences of arrest and detention for many material
witnesses also included lost jobs and businesses. Many had to move away from
their homes and communities to rebuild their lives.

The government's arbitrary detention of Muslim men without
cause and without due process has led to their loss of faith in the American
justice system, a loss of faith shared by many other Muslims. The arbitrary
arrests of Muslim men when they stepped forward to visit an FBI office, like
Eyad Alrababah, or on mere suspicion without probable cause, like Tajammul
Bhatti,run the risk of creating reluctance among many Muslims to assist
the U.S.
government in its investigations. Indeed, many believe that the material
witness arrests are evidence that the U.S. government believes the
sacrifice of the rights of Muslims is acceptable in the "war on terror."

The post-scripts to the stories of some of the men held as
material witnesses reveal the individual costs of the government's strategy of
misusing the material witness law to obtain preventive detentions.

Tajammul Bhatti

After the government released material witness Dr. Tajammul
Bhatti, a U.S. citizen and
thirty-plus year resident of the United States,
life changed for him in his small Virginia
community. Upon release, he felt he was the object of constant suspicion and
hostility. Bhatti told HRW/ACLU that "on a practical level, I lost most of my
friends. They did not know what had really happened. When I would go for walks,
I was afraid to be alone."[295]

Although the Justice Department never found that he had any
connection to a terrorism investigation, Bhatti never received official clearance
or an apology letter from the government. The government also never released
any public information in his case. One area newspaper, The Bristol Herald Courier, obtained the sealed warrant and
clarified that Bhatti was a material witness and not a criminal suspect. The
court hauled Bhatti, his lawyer and the reporter into court for contempt
proceedings and found the reporter, Chris Dumond, in contempt of court for not
revealing how he obtained the warrant. The reason for Bhatti's arrest remains shrouded.[296]

Months later, Bhatti felt the suspicions of his neighbors
had not subsided, and he could not feel at home in Abingdon. Shaken from the
experience, Bhatti returned to Pakistan,
where he stayed for a year. He recounted:

After I was released I was so upset. In October, my
sister and brother-in-law visited and told me why don't you come to Pakistan.
They wanted me to work to get it out of my system. So I left. I spent a year in
Pakistan.
It was useful. My need was to disconnect from the situation.[297]

Upon Bhatti's return to Abingdon, a resident told him, "We
thought you wouldn't be back for awhile."[298]His experience changed his views about America. As Bhatti had told the
FBI, he originally left Pakistan
because it was a "closed country." He was married to a Catholic woman for
twenty years and had two sons with her, both of whom are U.S. citizens living in the United States. But his wrongful
arrest touched him and his family deeply:

I came to this country because you can have independent
opinions and independent speech. I believed that for a long time. In practice
it doesn't work that way. I grew up expecting and always believed you can read
and speak freely without consequence, but this was different.[299]

Mohdar Abdullah

Mohdar Abdullah was released after spending two months in U.S.
prisons as a material witness and almost three years on immigration and
criminal charges.[300] After
Abdullah completed his grand jury testimony in November 2001, the government
charged him with document fraud, based on documents and information they
obtained from him during his detention as a material witness.

In October 2002, Abdullah pleaded guilty to document fraud
and received time served. He was immediately detained by Immigrations and
Customs Enforcement (ICE), and in May 2003, an immigration judge ordered him
deported.[301] However,
for the next year, Abdullah languished in immigration custody because he was
stateless; he was born to Yemeni parents in Italy but held citizenship in
neither country. Finally, in May 2004, Yemen agreed to take him.[302]

When Abdullah was deported to Yemen, he was immediately jailed in
a Yemeni prison:

When I arrived in Yemen, they took me away to a
political jail. There was a criminal jail and a political jail, which holds
suspected terrorists. I saw guys who were tortured, harassed very badly. I was
held for a month and a half in the Yemeni political jail.

I could not ask questions. What's worse is that they
put me at great risk of being physically harmed. You can't ask why.[303]

The U.S.
government still has not relented in its suspicions of Abdullah, recently
stating, "The FBI continues an active investigation of Mohdar Abdullah and any
connection to the September 11 attacks."[304]
But in the same statement the FBI acknowledged that after three years of detention,
"The investigation to date has determined that there is no evidence to
corroborate information that Mohdar Abdullah had prior knowledge of the
September 11 attacks."[305] The
government never charged Abdullah with any crime related to terrorism.

Abdullah, now twenty-five, is trying to rebuild his life
while remaining under the shadow of suspicion from the U.S. and Yemeni governments. He
described to HRW/ACLU how he felt during his detention in the United States:

Overall, emotionally I was stressed. I cannot describe
my emotions. I was quite angry and upset. I don't feel that I was put through a
fair legal process. I feel I was deceived and tricked. I faced a lot of
physical and verbal harassment until I was deported. Everyone knew about who
they said I was it was all over the news. The guards saw me as someone who
had come to the United
States to harm them, who's evil, who will
harm them.[306]

Nabil al-Marabh

Nabil al-Marabh faced a similar fate upon his deportation to
Syria
after being held as a material witness and then on immigration charges for over
two years. The U.S.
government jailed al-Marabh from September 18, 2001 until January 2004.
Although al-Marabh's material witness proceedings were conducted in complete
secrecy with no public documents, U.S. and Syrian papers ran stories
alleging that he was a terrorist, a key figure in the Detroit Sleeper Cell
case.

Al-Marabh feared being tortured in Syria given that it was widely known there that
the United States
had held him in connection with an alleged sleeper cell. So he applied for
relief from deportation under a federal statute implementing the Convention
against Torture.[307]Upon his September 2001 arrest, and
during the trial, newspapers gave extensive coverage to his situation, labeling
him a high-profile suspect, with leads referring to him as "No. 27 on the FBI's
list of terror suspects after Sept. 11."[308]

An immigration judge in Detroit denied al-Marabh's asylum claim under
the Convention Against Torture.[309] Upon
returning to Syria,
al-Marabh was questioned and detained by Syrian authorities. He has
subsequently reported that he has been under surveillance.[310]
The U.S.
government has persisted in alleging he is a terrorist, leaking secret
documents to the press as late as June 2004.[311]
Since these documents were released, U.S. advocates who had been in
touch with al-Marabh have lost contact with him.[312]

Ayub Ali Khan and Mohammad Azmath

Ayub Ali Khan and Mohammad Azmath were held in solitary
confinement for more than a year under the material witness law and on
immigration and minor criminal charges, amidst news reports that they were
terrorist suspects.[313] Even
though they are back in their hometown of Hyderbabad,
India, they
continue to face suspicion. Although the two men never faced terrorism charges,
when they were arrested as material witnesses, U.S. government sources
immediately leaked to the U.S. and Indian press their suspicions that Khan and
Azmath were "planning to hijack a fifth plane, perhaps at the nation's
second-biggest airport in Dallas."[314]
International newspapers reported: "Investigators believe the pair were part of
a hijack team which lost its nerve."[315]
Soon after the arrest, Indian and U.S. papers reported government
sources had indicated that the men were involved with the Anthrax attacks[316] and that
they were "seen" with two suspected hijackers; neither claim was ever
substantiated.[317]

Upon the arrest of Khan and Azmath, their families in India immediately became the subject of U.S.
scrutiny and investigation by the Indian government.[318]
According to the two men, U.S.
and Indian authorities questioned their families in India
while the U.S.
authorities told the men, "We searched your house. We will make sure that your
family will get prison."[319] Over the
next three months, Indian authorities repeatedly searched their residences,
seized their property, including marriage albums and family records, and posted
officers outside of their families' houses.[320]
The families became a target of state and community suspicion, with Khan's
picture appearing on the front page of an Indian newspaper with the caption,
"Is this Osama's man in India?"[321]

In addition, while Azmath was detained, Indian officials
focused their suspicion on Azmath's wife, Tasleem Murad, a Pakistani national
who had moved to India
following her marriage to Azmath.[322]
Citing national security concerns, the Andhra government initiated deportation
proceedings against Murad, who was pregnant with Azmath's child.[323] Khan's
family faced harassment in predominantly-Hindu Hyderabad.[324]

Because of the two men's incarceration, their families in India
lost a primary source of family income. In India, Khan and his family
"suffered a lot during the government's investigation of me. My mother went
into shock."[325]
Nonetheless, Khan's mother, through her daughter, began a campaign to release
her son, or at to least find out why he was being held, writing government
officials and the United Nations.

When Khan and Azmath returned to India, Indian authorities detained
and questioned both of them. The Hyderabad
authorities criminally charged Khan and Azmath with passport fraud and, as of
June 2005, werestill routinely
interviewing them and inspecting their homes.[326]
The two men have faced anti-Muslim discrimination in India and believe the fall-out from
the material witness arrests includes their inability to move forward on their
plans to open a small business.

"Evansville Eight"

The "Evansville Eight" material witnesses suffered serious
financial consequences from their detentions as material witnesses. Although the
FBI apologized to the eight wrongfully detained men and the Muslim community in
Evansville, the
apology did not mitigate the community's suspicions and the impact on the
restaurant owned by Tarek Albasti, where several of the other material
witnesses worked. As Albasti describes:

[A]fter we were released we were in hell, you tell
yourself, okay, well they released us so everyone should understand we are
innocent, but that was not the case.Because
I mean there are some people who support you and stuff like this but everyone
is curious: did you snitch on somebody else, or did you make a deal with the
government, or why were you released, or did you really do something or not.
And just you know you get all these kinds of questions-if you didn't do anything
why were you caught? It's just like all this doubt in people's mind.

At the time we lost about 30 to 40 percent of our
business and then it kept getting worse and worse. And even when we got the
apology and the newspaper wrote about it we thought we were going to be slammed
because it's an apology on the first page of the newspaper. And [business] is
slow. But people remember we were caught and this kind of thing and [business
got even] slower. Then the Evansville
Courier made a poll on the internet where they asked people did [they] talk
enough about the apology enough in the newspaper to give these people their
dignity back. It was so funny to get the response because most of the response
from people was, yes, they had enough, okay, they are innocent, [but] let's go
back to our life, if they don't like it let's tell them to go back to their
home, we are trying to make the country safer. I mean it was all this
outrageous stuff. But of course I think it's like human nature. Bad news just
keeps going and going and going but the good news is the stuff we don't care
about-well they are innocent, well everyone is innocent so let's go on. So
that's why the apology didn't work for us.[327]

Albasti had to cut his wait staff, including his friend
Tarek Omar. Albasti moved to Philadelphia.

Omar recalled:

I was put in jail for no reason. People are so nervous
here. We lost so much business because they think we are all terrorists.

After, it was difficult. You shop in Walmart and people
say "oh, you are the terrorist in the mall." . After the arrest, they thought
terrorists are in this mosque and they wanted revenge. We had to have guards
there.[328]

Acknowledgements

This report was researched and written by Anjana Malhotra,
Aryeh Neier fellow for Human Rights Watch and the American Civil Liberties
Union. The primary editor of the report and project manager was Jamie Fellner,
U.S. Program director for Human Rights Watch. Lee Gelernt, senior attorney for
the American Civil Liberties Union Immigrants' Rights Project, Jim Ross,
general counsel for Human Rights Watch, Joseph Saunders, deputy program
director for Human Rights Watch, and Robin Goldfaden, staff attorney for the
American Civil Liberties Union Immigrants' Rights Project also reviewed and
edited this report. Ann Beeson, associate litigation director for the American
Civil Liberties Union, provided valuable assistance in coordinating the report.
Keramet Reiter, associate for the U.S. program provided research
assistance and prepared the report for publication. Human Rights Watch staff
Andrea Holley, publications director and Fitzroy Hepkins, mail manager,
provided production assistance. Paul Jacobs and Miranda Johnson provided
research assistance throughout the report. Manu Krishnan assisted in
proofreading the report.

Human Rights Watch and the American Civil Liberties Union
would like to thank the many individuals in the United States and abroad who made
invaluable contributions to our understanding of the Department of Justice's
use of the material witness law as a post-September 11 policy. We are
particularly grateful to the material witnesses, their families, and their
counsel who gave the testimony that forms the core of this report.

Because of the Department of Justice's efforts to keep all
of the post-September 11 material witness arrests secret, finding the witnesses
was a difficult endeavor, made possible only with the help of many people,
including: Adem Carroll, the Islamic Circle of North America, Sin Yen Lee, Asian American Legal
Defense and Education Fund, and the many activists working with the New York
Post-September 11 Civil Rights Coalition, Islamic Circle of North America,
Counsel on American Islamic Relations, Muslim Public Affairs Council, Asian
American Legal Defense and Education Fund, and the Migration Policy Institute,
as well as the ACLU Affiliates of Eastern Missouri, Nevada, and Oregon. We also
wish to acknowledge the guidance provided throughout this report by Stephen
Schulhofer, professor, New York University School of Law, Michael Wishnie,
professor of clinical law, New York University School of Law, Wendy Patten,
former advocacy director of Human Rights Watch, Benita Jain, Immigrant Defense
Project, Nancy Morawetz, professor of clinical law, New York University School
of Law, and Anil Kalhan, associate-in-law at Columbia University.

Human Rights Watch and the American Civil Liberties Union
are grateful to the Open Society Institute for its support of the Aryeh Neier
Fellowship. We would also like to give special thanks to Gara LaMarche, vice
president of the OSI for initiating the fellowship. Human Rights Watch would
also like to thank the Open Society Institute and Peter Lewis for their support
of our work on U.S.
post-September 11 policies.

[1]International Covenant on Civil and
Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp.
(No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force
Mar. 23, 1976, Art. 9(1) ("Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law."). The United States ratified the ICCPR in
1992. United States Constitution IV ("The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."). The Due Process
Clause of the Fifth Amendment also safeguards against arbitrary detention, as
recognized by the U.S. Supreme Court: "Freedom from imprisonment-from
government custody, detention, or other forms of physical restraint-lies at the
heart of the liberty that Clause protects." Zadvydas
v. Davis, 533 United States Supreme Court
Reporter (U.S.)
678, 690 (2001).

[2]Probable cause is satisfied when a judge determines that there
existed circumstances "sufficient to warrant a prudent man in believing that
the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U.S.
89, 91 (1964). For a seizure to be constitutional under the Fourth Amendment,
law enforcement officers must "point to specific and articulable facts which
reasonably warrant the intrusion." Terry
v. Ohio, 392 U.S. 1, 21 (1968).

[5]Title
18 United States Code (U.S.C.) Section () 3144. The material witness law
provides in full:

Release or detention of a material witness

If it appears from an affidavit filed by a party that
the testimony of a person is material in a criminal proceeding, and if it is
shown that it may become impracticable to secure the presence of the person by
subpoena, a judicial officer may order the arrest of the person and treat the
person in accordance with the provisions of section 3142 of this title. No
material witness may be detained because of inability to comply with any
condition of release if the testimony of such witness can adequately be secured
by deposition, and if further detention is not necessary to prevent a failure
of justice. Release of a material witness may be delayed for a reasonable
period of time until the deposition of the witness can be taken pursuant to the
Federal Rules of Criminal Procedure.

[12]Ricardo J. Bascuas, "The Unconstitutionality
of 'Hold until Cleared': Reexamining Material Witness Detentions in the Wake of
the September 11th Dragnet," Vanderbilt Law Review, April 2005,
available online at: http://ssrn.com/abstract=603001,
accessed on June 17, 2005.

[13]In
1984, Congress amended the material witness law to expressly allow judges to
order the detention of material witnesses in limited circumstances while still
providing that "[n]o material witness may be detained because of inability to
comply with any condition of release if the testimony of such witness can
adequately be secured by deposition, and if further detention is not necessary
to prevent a failure of justice." 18 U.S.C. 3144. The Senate Appropriations
Committee, which was responsible for the amendment, "stresse[d] that whenever
possible, the deposition of such witnesses should be obtained so that they may
be released from custody." United
States Senate Reporter (S. Rep.) No. 98-225,
1984 U.S.C.C.A.N. 3182 (Aug. 4, 1983).

[18]18 U.S.C. 3142(b); 18 U.S.C.
3142(c), (f). The statute provides the court with a number of conditions to
impose on a witness in lieu of detention to ensure that the witness will appear
at the criminal proceeding. Such conditions include regularly reporting to the
court or a government agency, maintaining employment, maintaining or commencing
an educational program, abiding by restrictions on travel and abode, complying
with a curfew, or returning to custody for specified hours. 18 U.S.C. 3142(c)(1)(B).

[20]18
U.S.C. 3142(g). Section 3142 allows judicial officers to "order the pretrial
release of the person on personal recognizance, or upon execution of an
unsecured appearance bond in an amount specified by the court unless the
judicial officer determines that such release will not reasonably assure the
appearance of the person as required." 18 U.S.C. 3142(b). For criminal
defendants, the statute also allows the judge to assess whether or not release
"will endanger the safety of any other person or their community." However,
Congress made clear that this is not a factor relevant to the decision to
detain a material witness. United States
v. Awadallah, 349 F.3d 42, 63 n.15 (2d Cir. 2003).

[27]See,
e.g., Jackson v. Indiana, 406 U.S.
715, 738 (1972) (holding that "a person charged by a State with a criminal
offense who is committed solely on account of his incapacity to proceed to
trial cannot be held more than the reasonable period of time necessary to
determine whether there is a substantial probability that he will attain that
capacity in the foreseeable future"). Furthermore, under Jackson,
"[E]ven if it is determined that the defendant probably soon will be able to
stand trial, his continued commitment must be justified by progress toward that
goal." Ibid. See also Zadvydas v.
Davis, 533 U.S. 678 (2001) (finding that, under statute permitting
detention for purpose of carrying out removal, detention is no longer
authorized once removal is no longer reasonably foreseeable).

[28]Until March 1, 2003, immigration was handled by the INS, a
division of the Department of Justice. Now, the Department of Homeland Security
is charged with many immigration matters. The Bureau of Immigrations and
Customs Enforcement (ICE) handles immigration enforcement within the U.S.
borders.

[39]U.S.
Department of Justice, Office of the Inspector General (OIG), The September 11 Detainees: A Review of the
Treatment of Aliens Held on Immigration Charges in Connection with the
Investigation of the September 11 Attacks, April 2003, p. 16 (DOJ, OIG, The September 11 Detainees).

[40]According
to Department of Justice Inspector General Glenn Fine, when the FBI arrested
people in sweeps on immigration violations, "[T]he FBI in New York City made
little attempt to distinguish between aliens who were subjects of the FBI
terrorism investigation (called "PENTTBOM") and those encountered
coincidentally [E]ven in the chaotic aftermath of the September 11 attacks,
the FBI should have expended more effort attempting to distinguish between
aliens who it actually suspected of having a connection to terrorism from those
aliens who, while possibly guilty of violating federal immigration law, had no
connection to terrorism but simply were encountered in connection with a
PENTTBOM lead." Statement of Glenn A.
Fine, inspector general, U.S. Department of Justice before the House Committee
on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security
concerning Section 1001 of the USA PATRIOT Act, May 10, 2005.

[46]DOJ,
OIG, The September 11 Detainees, p.
38-39 ("The Department of Justice . . . is utilizing several tools to ensure
that we maintain in custody all individuals suspected of being involved in the
September 11 attacks without violating the rights of any person. If a person is
legally present in this country, the person may be held only if federal or
local law enforcement is pursuing criminal charges against him or pursuant to a
material witness warrant.").

[50]Former
U.S. Attorney General Janet Reno also recently recognized the government's
practice of holding suspects as witnesses, stating that because of "the broad
scope of grand jury investigations, [the government] can detain a suspected
terrorist as a material witness before it has evidence sufficient to support a
criminal arrest or indictment." Brief of Janet Reno, et. al., Amici Curiae in
Support of Respondents, Rumsfeld v.
Padilla, No. 03-1027, April 12, 2004, p. 17-18.In the brief, Reno
also noted that the government could detain material witnesses with "relative
ease," and the material witness law "can help prevent terrorist acts by
incapacitating terrorists." Ibid.

[51]United
States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003). Congress makes clear
that the purpose of detaining a witness is for securing her testimony by
authorizing the detention of a material witness if "the testimony of a person
is material in a criminal proceeding" and if "it may become impracticable to
secure the presence of the person by subpoena." 18 U.S.C. 3144. Congress also
indicates that the law is intended only to secure the witness's testimony by
requiring that a material witness generally should not be detained if the
government can secure the witness's testimony by deposition. Ibid. ("No
material witness may be detained because of inability to comply with any
condition of release if the testimony of such witness can adequately be secured
by deposition, and if further detention is not necessary to prevent a failure
of justice.").

[54]Affidavit
of Federal Bureau of Investigation Officer Richard Werder in support of the
U.S. Government's application for a material witness warrant for the arrest of
Brandon Mayfield, In re Federal Grand
Jury 03-01, No. 04-MC-9071 (D. Or. Filed May 6, 2004) (Richard Werder
Affidavit for material witness arrest warrant). The FBI reached this conclusion
even though there was no evidence that Mayfield had traveled to Spain, or
otherwise been out of the country for more than ten years. The government
contended the lack of passport was evidence that indicated Mayfield probably
"traveled under a false or fictitious name, with false or fictitious
documents." Ibid.

[55]FBI Agent Werder asserted that he "had probable cause to believe
and does believe that evidence fruit and instrumentalities of the crimes of
bombings and conspiracy to commit bombings of places of public use, government
facilities, public transportation systems and infrastructure facilities in
violation of 18 U.S.C. 2332(f)(a)(1) and (2), providing material support to
terrorists in violation of 18 U.S.C. 2339A, conspiracy to kill, kidnap, maim
or injure persons or damage property in a foreign country in violation of 18
U.S.C. 956(a) are presently located at [Mayfield's Safe Deposit Box]."
Affidavit of Federal Bureau of Investigation Officer Richard Werder in support
of the U.S. Government's application for a search warrant for the Safe Deposit
Box of Brandon Mayfield, No. 04-MC-9071, p. 1 (D. Or. 2004 Filed May 10, 2004).
See also Government's Response to Witness' motions for return of materials
seized pursuant to search warrants, for disclosure of search warrant affidavits
and for access to seized material, May 17, 2004, No. 04-MC-9071, p. 2 (D. Or.
2004). ("Given the fact that MAYFIELD is a sole practitioner who is himself
both a material witness and potential target").

[57]The
FBI was apparently under pressure to make a positive identification and a
"catch" as a public rebuttal to a separate pending federal court case
challenging the legitimacy of FBI fingerprint techniques. In addition, the FBI
assigned fingerprint agents who were under pressure to preserve their
individual jobs. Flynn McRoberts and Maurice Possley, "Report Blasts FBI Lab;
Peer Pressure Led to False ID of Madrid
Fingerprint," Chicago
Tribune, Nov. 14, 2004; Mayfield Complaint,
p. 24-25.

[58]According
to Tajammul Bhatti's son, who was in constant contact with the FBI during his
father's detention, the "FBI presumed him armed and dangerous, arresting him
with a handful of armed deputies under a seal[ed] material witness warrant."
HRW/ACLU e-mail interview with Munir Bhatti, son of material witness Tajammul
Bhatti, Los Angeles, California, August 11, 2004.

[63]Interview with
Tajammul Bhatti. Agents also inquired about the non-working number they found
for the Pakistani commissioner and on Bhatti's views on Israel. According to Bhatti: "They
saw on my computer that I had read some articles critical of the United States
policy in Israel and asked about my attitudes about politics in the Middle
East. I told them it's my views and they have nothing to do with them One
agent got very animated and told me it's right in the Bible that Palestine belongs to the
Jews."

[65]HRW/ACLU telephone interview with Munir Bhatti, son of material
witness Tajammul Bhatti, Los Angeles,
California, August 16, 2004
(Interview with Munir Bhatti). According to his son, "He didn't have a bed. He
had to sleep on a concrete floor It was very stressful. He had many sleepless
nights and accelerated aging." Ibid.

[68]Before coming to the United States, he had worked for a
company under contract for USAID for two years and had been granted national
security clearance. Donna Bryson, "Egyptian Student Found with Pilot Radio Had
Worked for U.S.
Government Contractor," Associated Press
Wire, Jan. 12, 2002.

[69]HRW/ACLU
interview with Robert Dunn, attorney for material witness Abdallah Higazy, New York,
New York, May 18, 2004 (Interview
with Robert Dunn, May 18, 2004).

[70]On
May 31, 2002, Ronald Ferry, the former hotel security guard who produced the
pilot's radio was sentenced to six months of weekends in prison for lying to
the FBI. He admitted that he knew that the device was not in a safe belonging
to Higazy. Ferry, who is a former police officer, said that he lied during a
"time of patriotism, and I'm very, very sorry." The judge said that
his conduct was "wrongly motivated by prejudicial stereotypes, misguided
patriotism or false heroism." "Presumption of Guilt," p. 38-39. Higazy has
since filed suit against Ferry and the FBI, asserting in part that that the FBI
agents failed to thoroughly investigate the tip, press Ferry for a sworn
statement, or subject him to a lie detector.

[71]See
Chapter VII, "Abusive Interrogations," in this report for further information
about Higazy's false confession.

[72]
Declaration of Michael Mobbs, special advisor to the Under Secretary of Defense
for Policy, United States. v. Padilla,
August 27, 2002 (Declaration of Michael Mobbs).

[77]"Remarks
of Secretary of Defense Donald H. Rumsfeld," June 11, 2002, Qatar,
available online at: http://www.defense.gov/transcripts/2002/t06112002_t0611edq.html,
accessed on March 31, 2005. The Justice Department also initially detained Ali
Saleh Kalah al-Marri as a material witness before the President directed that
he be detained as an enemy combatant. On December 12, 2001, FBI arrested Ali
Saleh Kalah al-Marri in Peoria,
Illinois pursuant to a material
witness arrest warrant issued from the Southern District of New York. He was
detained as a witness until January 28, 2002, when the Justice Department
re-arrested him on criminal charges of fraudulent possession of credit cards.
He was subsequently charged with making false statements to the FBI and other
government agencies. Al-Marri v. Bush,
274 F. Supp. 2d 1003, 1004 (C.D. Ill. 2003). Counsel for al-Marri challenged
his criminal charges on the grounds that the evidence for the charges was
derived from unconstitutional interrogations and searches. "Exhibit 5," Habeas
Petition filed on behalf of Ali Saleh Kalah Al-Marri, copy on file at HRW/ACLU. Similar to Padilla's case, when the
court was scheduled to hear the challenges to his detention, the President
ordered al-Marri detained as an enemy combatant. Petition for writ of habeas
corpus pursuant to 28 U.S.C. 2241, Al-Marri
v. Bush, CV No. 03-1220, p. 9 (C.D. Ill. Filed July 8, 2004), copy on file
at HRW/ACLU.

[78]Administrative
detention is defined as the executive branch of the state detaining an
individual on its own authority, when no
judicial arrest warrant or criminal charges have been brought against the
detainee.

[79]Article
3 of the Universal Declaration of Human
Rights provides that "everyone has the right to life, liberty and security
of person." Article 9 of the ICCPR, which similarly provides that
"everyone has the right to liberty and security of person," is "applicable to
all deprivations of liberty," Human Rights Committee, General Comment No. 8. The Siracusa Principles on the Limitation
and Derogation Provisions in the International Covenant on Civil and Political
Rights, which provide authoritative guidance on the ICCPR, state that even
during a state of emergency, "no person shall be detained for an indefinite
period of time, whether detained pending judicial investigation or trial or
detained without charge." Principle 70(b), available online at:
http://www1.umn.edu/humanrts/instree/siracusaprinciples.html, accessed on June
19, 2005. The Due Process clause of the Fifth Amendment authorizes civil,
non-punitive detention in narrow and limited circumstances. There must be a
specific justification that is "sufficiently weighty" to outweigh the
individual liberty interest, and the least restrictive means available must be
used, means that are not "excessive in relation to the non-punitive purpose for
which the individual is detained." Salerno, 481 U.S. 739, 747 (1987). See also Zadvydas v. Davis, 533 U.S. 678, 690
(2001) (construing immigration detention law to have a time limitation because
allowing indefinite detention would raise a serious constitutional question).

[84]Tim
McGlone, "Local Man Sentenced, Deported for Scam; Officials Found No Link to
Terrorism," The Virginian-Pilot and The
Ledger-Star, May 16, 2003.

[85]Zuhaier
Ben Mohammed Rouissi was also jailed as a material witness in the Detroit
Sleeper Cell trial. He was held for six months. Order granting government's
request for detention of Zuhaier Ben Mohammed Rouissi, United States v. Rouissi, Misc. No. 02-71478 (E.D. Mich. Filed
April 18, 2002); Order dismissing material witness warrant of Zuhaier Ben
Mohammed Rouissi, 2002, United States v.
Rouissi, Misc. No. 02-71478 (E.D. Mich. Filed November 6, 2002).

[86]A "sleeper cell" is a small group or subgroup
of people affiliated with a terrorist organization but not involved in any
active terrorist activities until it is alerted, when it begins its predetermined
preparation for an attack.

[89]Because
of the prosecutorial errors in Koubriti,
including the withholding and mischaracterization of central evidence, the
Justice Department filed a motion to dismiss the three terrorism-related
convictions, acknowledging that had the prosecution acted lawfully, the jury
may have reached a different verdict. In dismissing the convictions, the judge
sharply criticized the government for misleading the court and acting outside
constitutional parameters. "Government's Consolidated Response Concurring in
Defendants' Motions for a New Trial" and "Government's Motion To Dismiss Count
One Without Prejudice," Aug. 31, 2004. As the Justice Department characterized
its misconduct in its own motion to dismiss: "In its best light, the
record would show that the prosecution committed a pattern of mistakes and
oversights that deprived the defendants of discoverable evidence (including
impeachment material) and created a record filled with misleading inferences
that such material did not exist." Ibid.

[99]According
to Diab, Help the Needy helped "the most needy people on Earth, the Iraqi
children" during their suffering from the imposition of the United Nations
economic embargo on the country. Sam Skolnik, Daikha Dridi, and Paul Shukovsky,
"Inquiry Targets Muslim Charities in the Palouse," Seattle Post-Intelligencer, Aug. 2, 2002.

During his material witness detention, the government did
not put him on the witness stand or charge Soliman until the judge finally
after two months told the government that he was going to release him unless
the government charged him. The government then criminally charged him with
immigration fraud-lying on his naturalization application.

[112]May
2004 Indictment of Soliman S. Biheiri, United
States v. Biheiri, Crim. No. 04-201 (E.D.V.A. Filed May 6, 2001) (charging
him with two counts of false official statements and fraudulent procurement of
passport).

[113]HRW/ACLU telephone
interview with Dan Scott, federal public defender for the District of
Minnesota, Minneapolis, Minnesota, August 11, 2004 (Interview with
Dan Scott).

[121]HRW/ACLU
e-mail interview with Dr. Albader al-Hazmi, Dharan, Saudi Arabia,
April 22, 2004 (Interview with Dr. Albader al-Hazmi). See also Ellise Pierce,
"Coming Home," Newsweek Web Exclusive,
available online at: http://www.msnbc.com/news/637609.asp?cp1=1,
accessed on April 20, 2004 (Pierce, "Coming Home") ("There were six men with
guns. They asked me if I knew Mohammed Atta and I said that I'd never heard
that name. They mentioned another name, Khalid-something, and I said I never
heard that name.").

[128]Ibid. U.S. Deputy
Marshal Scott Shepard also testified: "[M]y understanding is that our
office treats anyone who is brought in as a material witness regarding the
September 11 or any of the other embassy bombing trial[s], or anything like
that, is treated as a security risk."). Ibid.

[138]Under
international law, anyone who is deprived of his or her liberty has the right
to appear before a court without delay and to ask the court to determine the
legality of the detention. ICCPR, article 9(4). The ICCPR in article 2(3)
requires that all persons whose rights have been violated "have an effective
remedy" determined by a competent authority. The Human Rights Committee, in its
General Comment 31 on Nature of the General Legal Obligation on States Parties
to the Covenant (2004), said that states must "ensure that individuals also
have accessible and effective remedies to vindicate those rights." Moreover,
"anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation." ICCPR, article 9(5).

[139]See,
e.g., Hamdi v. Rumsfeld, 124 S.Ct. 2633, (2004) (recognizing
"citizen[s] core rights to challenge meaningfully the Government's case and to
be heard by an impartial adjudicator); Matthews v. Eldridge, 424
U.S. 319, 333 (1976) ("The right
to be heard before being condemned to suffer grievous loss of any kind, even
though it may not involve the stigma and hardships of a criminal conviction, is
a principle basic to our society.").

[140]Materiality
is the requirement that a witness has material information.

[145]Bacon, 449 F.2d., p. 943. See also Awadallah, 349 F.3d, p. 70; United
States v. Oliver, 638 F.2d (7th Cir. 1982), p. 224, 231. The Bacon "take the government at its word"
probable cause standard raises Fourth Amendment concerns. The Supreme Court
"repeatedly has explained that 'probable cause' to justify an arrest means
facts and circumstances within the officer's knowledge that are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown that the suspect has committed, is committing, or is to
commit an offense." Michigan v. DeFillippo, 433 U.S. 31, 37 (1979). Put
differently, the Court has interpreted the Fourth Amendment to require that
courts examine the government's evidence to review whether a reasonable or
prudent person would believe that there are sufficient facts to believe that
the person to be arrested has committed an offense. In contrast, the Bacon sworn statement standard does not
require courts to test whether a reasonable person would agree with the
government's assertion that a witness's testimony is material. Also, courts
have required more judicial scrutiny for grand jury subpoena requests than
applications for the detention of grand jury material witnesses. In considering
whether to grant a grand jury subpoena, courts are required to check for
relevancy, specificity and whether the government is going on a "fishing
expedition" or requesting irrelevant information. In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291,
1302 (4th Cir. 1987). Grand jury subpoenas are designed only for the purpose of
obtaining testimony and are "not meant to be the private tool of the
prosecutor," United States v. Fisher,
455 F.2d 1101, 1105 (2d Cir.1972). "[P]ractices which do not aid the grand jury
in its quest for information bearing on the decision to indict are forbidden." United
States v. [Under Seal], 714 F.2d 347, 349 (4th Cir. 1983), cert.
dismissed, 464 U.S. 978 (1983).

[147]For
example, see the cases of Tajammul Bhatti (in the "Suspects Held as Witnesses"
section of Chapter III), Albader al-Hazmi (in the "Excessive Force in Arresting
Witnesses" section of Chapter IV), and Abdullah Tuwalah (in the "Prolonged
Incarceration and Undue Delays in Presenting Witnesses to Grand Juries" section
of Chapter III).

[148]In
criminal arrests, the Supreme Court has carved out constitutional limits to the
government's use of unverified and unreliable tips. Spinelli v. United States, 393 U.S. 410 (1969) (rejecting arrest
warrant of criminal suspect as invalid because of absence of sufficient
reliability and corroboration of informer's tip).

[149]The United Nations Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (U.N. Body of Principles), G.A. res. 43/173, annex,
43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), principle 11(1)
provides that "[a] person shall not be kept in detention without being given an
effective opportunity to be heard promptly by a judicial or other authority."
When an individual has been deprived of a liberty interest, the Fifth Amendment
right to Due Process guarantees a prompt hearing, conducted at a meaningful
time and in a meaningful manner. Barry v.
Barchi, 443 U.S.
55 (1979).

[155]The
ICCPR, article 9(2) provides that "anyone who is arrested shall be informed, at
the time of arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him." The Human Rights Committee has noted that
article 9(2) "requires that anyone who is arrested shall be informed
sufficiently of the reasons for his arrest to enable him to take immediate
steps to secure his release if he believes that the reasons given are invalid
or unfounded." Drescher Caldas v. Uruguay
(43/1979), July 21, 1983.

[156]United States
constitutional guarantees of due process establish the right of anyone detained
to be informed of the grounds for his or her arrest. United States v. Hamdi, 124 S.Ct. 2633, 2648-49 (2004) ("For more than a century the
central meaning of procedural due process has been clear: 'Parties whose rights
are to be affected are entitled to be heard; and in order that they may enjoy
that right they must first be notified.' It is equally fundamental that the
right to notice and an opportunity to be heard 'must be granted at a meaningful
time and in a meaningful manner.") (internal citations and
footnotes excluded).

[167]Al-Mirabi had briefly overstayed his visa in
the United States,because his U.S.-citizen wife encountered complications when she gave birth
to their child in August 2001. HRW/ACLU telephone interview with Gerald
Kleinschmidt, San Antonio, Texas, February 25, 2004 (Interview with
Gerald Kleinschmidt).

[169]Human Rights Watch/ACLU requested the
records for United States v. Almirabi,
and the clerk for the Northern District Court of Texas stated the records were
no longer in Texas. The clerk informed HRW/ACLU that the files had been
transferred to the Northern District of Illinois. Our in-person request in Chicago and search for
"al Mirabi" or "Almirabi" on the docket system of the Northern District of
Illinois revealed no record for Anwar al-Mirabi.

[179]See, e.g., U.N. Body of Principles,
principle 17(1): "A detained person shall be entitled to have the assistance of
a legal counsel. He shall be informed of his right by the competent authority
promptly after arrest and shall be provided with reasonable facilities for
exercising it."

[183]HRW/ACLU telephone interview with Patrick Joyce, New
York, New York, March
2004.

[184]HRW/ACLU
telephone interview with Mitchell Gray, Oklahoma
City, Oklahoma, July 2004.
See also "Presumption of Guilt," describing difficulties of lawyers and clients
unable to find relatives held after September 11.

[186]International human rights law prohibits law
enforcement officials from conducting coercive interrogations. The Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT), G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc.
A/39/51 (1984), entered into force
June 26, 1987 (ratified by the U.S.
in 1994), available online at: http://www1.umn.edu/humanrts/instree/h2catoc.htm,
accessed on June 17, 2005. CAT prohibits torture and other mistreatment under
all circumstances, and includes "any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person information or a
confession." Ibid., article 1. Torture and other cruel, inhuman or
degrading treatment are also prohibited under article 7 of the ICCPR. Principle
21 of the U.N. Body of Principles states: "No detained person while being
interrogated shall be subject to violence, threats or methods of interrogation
which impair his capacity of decision or his judgment."

[187]The U.S. Supreme Court has repeatedly upheld
the rights of individuals not to be subjected to coercive interrogations. In Haley v. Ohio, Justice Frankfurter
stated in a concurring opinion: "An impressive series of cases in this and
other courts admonishes of the temptations to abuse of police endeavors to
secure confessions from suspects, through protracted questioning, carried on in
secrecy, with the inevitable disquietude and fears police interrogations
naturally engender in individuals questioned while held incommunicado, without
the aid of counsel and unprotected by the safeguards of a judicial inquiry." Haley
v. Ohio, 332 U.S.
596, 605 (1948) (Frankfurter, J. concurring). In Stone v. Powell,
Justice Burger opined that: "A confession produced after intimidating or
coercive interrogation is inherently dubious. If a suspect's will has been
overborne, a cloud hangs over his custodial admissions; the exclusion of such
statements is based essentially on their lack of reliability." Stone v.
Powell. 428 U.S.
465, 496 (Burger, J. concurring).

[190]Interview with Abdallah Higazy;Human Rights Watch telephone interview with
Robert Dunn, attorney for Abdallah Higazy, New York, New York, July 23, 2002
(Interview with Robert Dunn, July 23, 2002).

[201]DOJ Response I. The government also refused
to disclose the names of material witnesses, where they were being held, dates
of arrest and detained, nature of charges filed, and names of attorneys
representing witnesses in response to a Freedom of Information Act request by
the Center for National Security Studies, American Civil Liberties Union and 21
other organizations. Center for National Security Studies v. United
States. Dept. of Justice, Pet.
for Cert., No. 03-742 (Sep. 30, 2003).

In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
The press and the public may be excluded from all or part of a trial for
reasons of morals, public order (ordre
public) or national security in a democratic society, or when the interest
of the private lives of the parties so requires, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.

The Human
Rights Committee, in its General Comment 13, has noted that the "publicity of
hearings is an important safeguard in the interest of the individual and of
society at large." Apart from exceptional circumstances, "a hearing must be
open to the public in general, including members of the press, and must not,
for instance, be limited only to a particular category of persons. It should be
noted that, even in cases in which the public is excluded from the trial, the
judgment must be made public." Ibid. The national security exception to
public hearings does not provide states unfettered discretion to close
hearings. According to the Johannesburg
Principles on National Security, Freedom of Expression and Access to
Information (drafted by international law and human rights experts in 1995
and endorsed by U.N. special rapporteurs): "A restriction sought to be
justified on the ground of national security is not legitimate unless its
genuine purpose and demonstrable effect is to protect a country's existence or
its territorial integrity against the use or threat of force, or its capacity
to respond to the use or threat of force, whether from an external source, such
as a military threat, or an internal source, such as incitement to violent
overthrow of the government." Principle 2, available online at: http://www1.umn.edu/humanrts/instree/johannesburg.html,
accessed on June 17, 2005.

[203]Public hearings and records also enhance
public confidence in the proceedings. "The traditional Anglo-American distrust
for secret trials has been variously ascribed to the notorious use of this
practice by the SpanishInquisition,
to the excesses of the English Court of Star Chamber, and to the French
monarchy's abuse of the lettre de cachet. All of these institutions obviously
symbolized a menace to liberty. In the hands of despotic groups each of them
had become an instrument for the suppression of political and religious
heresies in ruthless disregard of
the right of anaccused to a fair
trial. The knowledge that every criminal trial is subject to contemporaneous
review in the forum of public opinion is an effective restraint on possible
abuse of judicial power." In re Oliver,
333 U.S.
257, 268-70 (1948) (internal citations omitted).

[204]As one court stated in deciding whether to
unseal the records of a bail proceeding: "The decision to hold a person
presumed innocent of any crime without bail is one of major importance to the
administration of justice Openness of the proceedings will help to ensure
this important decision is properly reached and enhance public confidence in
the process and result." Seattle Times
Company v. United States District Court for Western District, 845 F.2d
1513, 1517 (9th Cir. 1988) (citing Press-Enterprise
Co. v. Superior Court, 464 U.S. 501, 508 (1983)).

[210]Fed.R.Crim. P.
6(e)(6). The rule provides that
records related to grand jury proceedings documents "must be kept under seal to
the extent and as long as necessary to prevent unauthorized disclosure of a
matter occurring before a grand jury."

[215]The public first learned about the case
through an investigative reporter who saw the case briefly appear on the
docket. Dan Christensen, "Secrecy Appealed, Detained after Terror Attacks,
Algerian-born Broward Man Asks U.S. Supreme Court to Review Sealing of His
Case," Miami Business Review, Sept. 25, 2003.

Once the evidence that was unlawfully obtained from
Awadallah on September 20 and 21 is excised from Agent Plunkett's affidavit,
the few strands of factual information that would have remained-while
sufficient to satisfy the materiality prong of the federal material witness
statute-would not have established probable cause to believe that it may have
"become impracticable" to secure Awadallah's presence before the
grand jury by subpoena. See 18 U.S.C. 3144. To conclude otherwise, as the
majority does, impermissibly fuses the separate statutory materiality and
impracticability requirements and has significant implications for Fourth
Amendment jurisprudence. I fear that the majority opinion may have the effect
of weakening the impracticability requirement-traditionally the more difficult
of the two 3144 prongs to satisfy-by resting its impracticability finding
entirely on a slender materiality showing and a number of suppositions (not
supported by any facts in the redacted affidavit) about the significance of
Awadallah's failure to come forward. Other courts have rejected much stronger
impracticability showings.

[234]Human Rights Watch
interview with Eyad Mustafa Alrababah, City Jail, Alexandria,
Virginia, February 5, 2002; HRW/ACLU telephone
interview with Ardra Doherty, Eyad Mustafa Alrababah's fiance, Nutley, New
Jersey, January 15, 2002. When Alrababah asked why he
was detained, agents told him: "You're a protected witness." But he was not
given any document that detailed any charges against him or that stated that he
was a material witness. He was not allowed to make any phone calls from the
detention center but did telephone his fiance, a U.S. citizen, a few times from the
FBI office where he was taken for interrogations. See also "Presumption of
Guilt".

[M]y brother Mohammed planned to travel to Israel to attend the end-of-Ramadan prayers and
celebrations at a Moslem holy place in Jerusalem.
Because I was concerned about the physical risk involved in making a trip to Israel at this
time, I sent my brother a letter in which I advised him that I respected his
religious motive in making this trip, and also expressed my feelings for him
and the relationship we have had. As a devout Moslem, it is my personal belief
that life is always in the hands of God, and we never know what tomorrow will
bring. We must therefore try to live our lives each day as if we might face
judgment for our deeds tomorrow. My letter did include a number of references
to "jihad," which, as used by Moslem believers, primarily refers to
an individual's struggle to live his life in accordance with the dictates of
God and his Prophet Mohammed. It is these references to "jihad" which
have been misinterpreted by the government investigators and have prompted the
Kafkaesque nightmare in which my brother and I have now been living for the
past three months.

[251]See,
e.g., Awadallah, 349 F.3d, p. 53
("Two of the four listed considerations [in the pre-trial detention statute]
have little bearing on the situation of an individual detained as a material
witness in a grand jury proceeding.

[253]In enacting the
current version of the material witness law, Congress made clear that "whenever
possible, the depositions of witnesses should be obtained so that they may be
released from custody." As one Congressman explained when the deposition
requirement was explicitly added to the material witness statute:

This,
in effect, would say that the Congress feels that you should ordinarily not
detain material witnesses. They have committed no crime, except to have been at
the wrong place at the wrong time, and we have had some recent instances
where apparently material witnesses were unhappily detained for several months
to testify in connection with the crime that [they] felt that [they] had any
connection with except knowledge. And the idea here is that the Congress
would feel that it should be the exceptional case where a material witness
should be detained, and that unless for some reason the testimony cannot be
adequately secured by deposition, the individual should be released.

Federal Bail Reform, Hearings before the Committee on the
Judiciary, House of Representatives, 89th Congress, Second Session, p. 29
(March 9-16, 1966).

[258]In addition to the public apologies for
wrongful arrests and admissions in Congress, Justice Department officials have
acknowledged that some material witnesses held in the September 11
investigations may have no relevant information. See also Center for National Security Studies v. Department of
Justice, Reynolds Aff. 36, No. 01-2500 (D.D.C. 2002), Chief of the
Terrorism and Violent Crime Section in the Criminal Division of the U.S.
Department of Justice, James Reynolds (noting that "it may turn out that
[material witnesses held in connection to September 11] have no information
useful to the investigation or that they are innocent people who are able to assist
the government in its investigations").

[272]To obtain a search warrant for Elbarasse's
home and car, the government asserted in its affidavit that a review of the
video showed "the cables and upper supports of the main span" of the
bridge. Elbarasse's daughter "said the cables simply got in the way as they
were filming the scenery below the bridge." Jerry Markon and Eric Rich,
"Virginia Family Defends Video of BayBridge," Washington Post, August 26, 2004.

[273]HRW/ACLU telephone interview with Stanley
Cohen, attorney for Ismael Selim Elbarasse, New York,
New York
August 27, 2004.

[307]United States
Policy with Respect to the Involuntary Return of Persons in Danger of
Subjection To Torture, Pub.
L. No. 105-277, Fiv. G, Title XXII, 2242, Oct. 21, 1998, 112 Stat. 2681-2.
Under the Convention against Torture,
the United States
may not return anyone to a country where they face the likelihood of torture.
Art. 3.

[308]"Despite Fears of Terror Ties, Suspect Goes
back to Syria," New York Times, June 3, 2004. International
newspapers reported that al-Marabh was "reputed to be a close associate of
Osama bin Laden" and described al-Marabh as the "the object of a nationwide terrorism
manhunt." David Ashenfelter, "Former Terror Suspect Testifies in Court Hearing;
Deposition Held for 4 Facing Federal Charges," Detroit Free Press, March 14, 2003; Paul Gustafson, "Accused Terror
Supporter on Trial; Secrecy Shrouds the Detroit Trial of a Former Minnesotan
Who is Accused with Three Others of Providing Help and Resources to
Terrorists," Star Tribune, March 19,
2003. Press accounts on al-Marabh were headlined "Attack on America-Faces
of the Hijackers-FBI Believes Plotters Planned to Seize Six Airliners," "FBI
Alleges Plot for Attack," and "Terror Detainee Spends 8 Months in Solitary."
Paul Kelso, Nick Hopkins, John Hooper, Richard Norton-Taylor, "Attack on America-Faces
of the Hijackers-FBI Believes Plotters Planned to Seize Six Airliners," The Guardian, Sept. 19, 2001; Steve
Fainaru, "Terror Detainee Spends 8 Months in Solitary." Washington Post, June 12, 2002.

[309]Although al-Marabh was never criminally
charged with terrorism, the immigration judge found al-Marabh to be ineligible
for relief under the Convention against Torture because he posed a danger to
national security. The immigration judge further held that even if al-Marabh
were eligible, he should not be granted relief under international law in part
because "the documentary evidence fails to prove a risk of persecution [in
Syria] as there is no evidence indicating anyone similarly situated has been
persecuted or harmed in Syria." However, the U.S. State Department has
consistently reported on torture in Syrian prisons. In the 2001 country report,
the State Department observed: "[d]espite the existence of constitutional
provisions and several Penal Code penalties for abusers, there was credible
evidence that security forces continued to use torture, although to a lesser
extent than in previous years. Former prisoners and detainees report that
torture methods include administering electrical shocks; pulling out
fingernails; forcing objects into the rectum; beating, sometimes while the
victim is suspended from the ceiling; hyperextending the spine; and using a
chair that bends backwards to asphyxiate the victim or fracture the victim's
spine." U.S. Department of State, "Syria," 2001 Country Reports on Human Rights Practices, March 4, 2002,
available online at: http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8298.htm,
accessed on June 17, 2005. See also: Human Rights Watch, "Still at Risk: Diplomatic
Assurances No Safeguard against Torture," Vol. 17, No. 4(D), April 2005; Human
Rights Watch, "Human Rights Watch Report to the Canadian Commission of Inquiry into
the Actions of Canadian Officials in Relation to Maher Arar," June 7, 2005,
available online at: http://www.hrw.org/backgrounder/eca/canada/arar/,
accessed on June 17, 2005.

[323]After a legal battle (and the FBI's
clearance of Azmath as a suspect in the September 11 investigation), the Indian
Central Government overturned the deportation order and issued Murad a one-year
extension of her visa. Omer Farooq, "Pakistani Woman Escapes Deportation," BBC News, Sept. 23, 2002.